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Illinois Probate Act 755 ILCS 5/4-6: Beneficiary or Creditor as Witness

In order for a will to be valid, it must be signed by the testator and witnessed by at least two people. However, there are restrictions related to being a witness. A beneficiary cannot also be a witness. If a witness is a beneficiary, then the gift to the beneficiary as stated in the will is void. The Illinois Probate Act includes the rules related to wills, included how a will must be executed in order for it to be valid and in order for specific terms to be valid. It is critical that your will is executed in manner that is consistent with both your goals and Illinois law. Contact an experienced Chicago will lawyer at the Law Offices of Stephen Bilkis & Associates to review your will in order to ensure that all terms are valid.

Restrictions on Beneficiaries and Creditors

Under the Illinois Probate Act, in order for a will to be valid, the will must be in writing, it must be signed by the testator, and must be witnessed by at least two individuals. Furthermore, Illinois prefers that the witnesses be disinterested individuals. Thus, if a witness is also listed as a beneficiary in the will the bequest to that beneficiary may fail.

The only way to get around the problem of the beneficiary-witness is for there to be a third eligible witness. That way, the execution of the will would have met the 2-witness minimum without the beneficiary-witness so that the beneficiary-witness is not actually needed to meet the legal requirements for executing the will. Thus, the beneficiary-witness will be permitted to receive his or her bequest. In addition, if the witness would be entitled to inherit if the testator died without having made a will, the witness would be entitled to receive a distribution from the estate only up to the value that he or she would have received if there was not a will. If you are a beneficiary-witness, contact an experienced Chicago will lawyer to discuss your rights under the Illinois Probate Act.

In addition, an individual or corporation can still be a fiduciary with respect to a will even if a partner of the individual or employee of the corporation is a witness to the execution of the will. Similarly, a creditor whose debt is secured by property in the estate is permitted to witness the will.

Related Statutory Provisions
  1. Capacity of testator: Illinois Probate Act, 755 ILCS 5/4-1
  2. Signing and attestation: Illinois Probate Act, 755 ILCS 5/4-3
  3. Revocation - revival: Illinois Probate Act, 755 ILCS 5/4-7
Illinois Probate Act, Section 4-6- Beneficiary or Creditor as Witness

(a) If any beneficial legacy or interest is given in a will to a person attesting its execution or to his spouse, the legacy or interest is void as to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested by a sufficient number of witnesses as provided by this Article exclusive of that person and he may be compelled to testify as if the legacy or interest had not been given, but the beneficiary is entitled to receive so much of the legacy or interest given to him by the will as does not exceed the value of the share of the testator's estate to which he would be entitled were the will not established.

(b) No individual or corporation is disqualified to act or to receive compensation for acting in any fiduciary capacity with respect to a will of a decedent by reason of the fact that any employee or partner of such individual or any employee or shareholder of such corporation attests the execution of the will or testifies thereto. No attorney or partnership of attorneys is disqualified to act or to receive compensation for acting as attorney for any fiduciary by reason of the fact that the attorney or any employee or partner of the attorney or partnership attests the execution of the will or testifies thereto.

(c) If real or personal estate is charged with any debt by a will and the creditor whose debt is so secured attests the execution of the will, the creditor may testify to its execution.

Contact the Law Offices of Stephen Bilkis & Associates

If you have any concerns related to whether or not your will was properly executed, contact a will attorney serving Chicago. It is important make sure that all rules related to executing a will are followed. While having a beneficiary witness your will will not cause the entire will to be invalidated, failure to follow other requirements related to executing the will may result in your will being invalidated as a result of a will contest during probate. As a result, your property may end up being distributed not to the beneficiaries of your choosing, but to your heirs according to the rules of intestate succession. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing individuals, executors, beneficiaries, and heirs in estate matters. Contact a skilled will attorney in Chicago at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.

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