Making a Valid Will in Illinois

What you need

A will is one document, but getting it signed correctly takes a few things in place first.

• The will itself, typed or printed, with your full name and your signature.
• Two witnesses who watch you sign. Pick people who receive nothing under the will.
• A list of what you own and who should get each item or share.
• The name of your executor, plus a backup if your first choice cannot serve.
• If you have children under 18, the name of the person you want as their guardian.
• Your other planning papers, such as a power of attorney for property and a power of attorney for health care. A will does nothing while you are alive, so these cover the years before your death.

What Illinois law requires for a valid will

Two sections of the Probate Act set the basic rules. Section 4-1 says anyone who is 18 or older and of sound mind and memory can leave property by will. Section 4-3 says the will must be in writing, signed by you or by someone else in your presence and at your direction, and attested in your presence by two or more credible witnesses.

Notice what the statute leaves out. Section 4-3 does not list a notary. Witnesses are the step Illinois cares about. A handwritten will that nobody witnessed does not meet the rule, no matter how clearly it states your wishes.

Why the witnesses matter

The witnesses are the people a court turns to if someone questions whether the will is real. They watch you sign and then sign the will themselves, in your presence. Use adults who know you, who will remember the day, and who can be found years later.

Section 4-6 deals with a witness who is also named in the will. A gift to a witness, or to a witness's spouse, is void unless the will has enough other valid witnesses. The witness may still receive a limited amount, no more than the share they would have received without the will. The easy fix is to choose witnesses who get nothing, such as a friend or neighbor.

What a will can and cannot do

A will names who gets your property, who serves as executor, and who becomes guardian of your minor children. It takes effect only at death. It does not help you if you are hurt or become unable to manage your affairs.

A will also does not control everything you own. Property that a trust owns passes under the trust. Real estate covered by a recorded transfer on death instrument passes under that instrument, which Illinois law calls nontestamentary. Everything left over goes through court. That court process is probate, and a will does not avoid it. If avoiding probate matters to you, read the page on will versus trust.

Changing or canceling a will

Section 4-7 lists the only ways to revoke a will. You can burn, cancel, tear, or obliterate it yourself, or have someone do it in your presence and at your direction and with your consent. You can sign a later will that says it revokes the earlier one. A later will also replaces an earlier one to the extent the two conflict. Or you can sign a separate document declaring the revocation, signed and witnessed the same way a will is.

Writing new notes in the margin of a signed will is risky. Edits that are not signed and witnessed may not count, and they can raise questions about the rest of the document. A short amendment or a fresh will, signed and witnessed properly, avoids the argument.

Life changes matter too. Under section 4-7(b), a divorce cancels gifts to your former spouse and removes your former spouse as executor, and the will then reads as if that spouse had died first. Other changes, such as a new child or a new house, do not change the will on their own, so an old will can leave out people you would now include.

After a death

Whoever holds the original will must file it with the clerk of the court in the proper county right after the death. Section 6-1 also makes it a crime to destroy or alter a will without the maker's direction, or to hide it for 30 days after learning of the death. For that reason, tell your executor where the original is kept. Keep it somewhere safe and easy to reach, because a copy is not the same as the signed original.

If you already have a will, bring it along. Jeff can read it against the current rules and tell you whether it still fits your family.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.