A will is one of the most common estate planning documents and one of the most important. A last will and testament allows you as the testator the opportunity to retain control over what happens to your property once you pass away. You can decide which of your relatives or friends get specific portions of your estate. You can even leave property to organizations. A will also allows you to name someone you trust as your executor. Your executor will have the responsibility of winding up your affairs and transferring your property to your loved ones. In addition, with a will you can name the person who you want to care for your minor children. In order to ensure that your estate planning goals are met, it is important that your will is drafted in consultation with an experienced Chicago will lawyer.Types of Wills
Based on your specific family and financial situation as well as your overall goals, there are different types of wills that you can create.
- Pour over will. With a pour over will, all property that is in your probate estate is transferred into a trust that you previously created.
- Reciprocal wills. Reciprocal wills are wills created by two different testators that leave each other their property. They are sometimes referred to as “mirror” wills. Reciprocal wills are often created by spouses, with each leaving the other the entire estate.
- Joint will. A joint will is a single will that allows two testators to dispose of their property. Typically such a will states that the entire estate will go to the other person. Joint wills are also referred to as mutual wills.
- Holographic will. A holographic will is a handwritten will that is signed, but not witnessed. While holographic will are valid in some states, they are not valid in Illinois.
- Nuncupative will. A nuncupative will is an oral will. While it may be witnessed, there is no written record, and thus, no signature. For example, a terminally ill person may orally give what he refers to as his last will in testament. Oral wills are not valid in Illinois.
- Codicil. A codicil is an amendment to a will. If you need to make changes to a will, instead of creating a new will you can simply add a codicil.
As an experienced Chicago will lawyer will explain, in order to be valid, regardless of the type of will you create, it must be properly executed according to the requirements of Illinois law. This means that the will must be signed by the testator, must be witnessed by at least 2 individuals, and the witnesses must also sign it. These formalities are also required in order for a codicil to be valid.Probate Property vs. Non-Probate Property
Not every type of property can be left to others in a will. One probate property is subject to probate. Probate property typically includes property that you own individually such as clothing, cars, real estate, bank accounts, home furnishings, and collectibles. These types of property will only go to your beneficiaries according to the terms of your will once the probate process is over. This typically takes 6-12 months.
Property that is not subject to probate will be turned over to your beneficiaries a lot more quickly than probate property. Non-probate property includes property that is held in joint tenancy with another person such as real estate. Your interest in that property will go to the other joint tenants outside of the probate process. Joint bank accounts, or financial accounts that have a payable on death (POD) or transfer on death (TOD) designation. The accounts will transfer to the joint owner or designated beneficiary regardless of what the will states. Similarly, property held in trust, proceeds of life insurance policies, and property in 401(k) plans and other retirement plans will go to the designated beneficiaries.
If you are wondering about whether property in your estate will be subject to probate, discuss your concerns with a will attorney in Chicago.Intestate Succession
If you pass away without having created a valid will, then your property may be subject to intestate succession rules. Under Illinois law, in the absence of a will, the decedent’s probate property will go to the relatives of the decedent based on an order for priority state in the intestacy rules. If you leave a surviving spouse and children, then your property will go to them. Your surviving spouse will receive 50% of you estate and your children will receive the other 50% of your estate. If you pass away without a surviving spouse and your do not have children, your estate will go to other blood relatives.
Failure to leave a will puts control as to who gets your property in the hands of the state of Illinois. This is not the result that most people would prefer.Contact the Law Offices of Stephen Bilkis & Associates A will is an important part of a comprehensive estate plan. Any property in your probate estate will end up subject to the rules of intestate succession should you pass away without a will. For help in creating a will that will meet your goals for how you would like your estate distributed, contact the experienced will attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates. We are here to help. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.