Last Will and Testament

Controlling how the assets they have worked hard to acquire during their lifetime are disposed of when they die is a privilege people have cherished for centuries. All states, including Illinois, have intestacy laws that specify how a person’s will will be distributed when they die. These laws, which distribute a person’s property to their closest living relatives, may not reflect the true wishes of deceased. A last will and testament is a legal document by which a person can have control over how their assets are distributed.

What is a Last Will and Testament?

A will is a legal document in which a person, known as the testator, designates how his estate will be distributed after his death. A will must comply with the law of the state in which it is signed as to form and method of execution. Although the laws may differ from one state to another, a will that is valid under the law of the state in which it is signed will be legally enforceable in every other state.

What Can a Person Do in a Will?

A will allows a person to designate someone they trust to act as the executor who will carry out the terms of the will. The executor will be responsible for following the instructions of the deceased person as to:

  • How and to whom assets should be distributed.
  • Establishing a trust to manage property left to a child.
  • Naming a person to act as trustee with power over the trust.
  • Designating a person to act as the guardian of minor children.

Unlike the laws of intestacy, a will gives a person full control and more flexibility over the handling of his real and personal property after his death.

What Can a Will Not Do?

In general, a person may control the disposition of property he owns at the time of his death through a will, but there are exceptions. Property jointly owned with another person usually passes to the survivor upon the death of one of the joint owners regardless the wording of a will. The same is true of life insurance policies that name a beneficiary to receive payment upon the death of the insured.

What are the Formal Requirements for a Will in Illinois?

Illinois law requires that a will must be in writing and signed by the testator in the presence of two witnesses who must also sign the will. As long as the will complies with these formalities for execution in Illinois, other states, whose requirements for execution may be different, will honor it.

What Happens When a Person Dies?

When the maker of a last will and testament dies, the will is filed with the court designated to handle probate or estate matters where the person resided at the time of his death. In Illinois, the will and a petition asking the court to appoint the person named as executor as the official representative of the estate is filed in the circuit court.

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