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|Senior Citizens Handbook - Wills, Trusts and Estates||
Last updated: August 2010
This Section gives a general summary of Illinois laws which affect what happens to your property when you die. It is a summary only, not a guide on how to accomplish your personal goals. This Section aims to prepare you to meet with a lawyer or other estate planning professional, and get the most out of the time and money you spend.
This area of the law can be very complicated, and each person's situation is unique. Each of the methods described in this Section for distributing your property on your death has advantages, disadvantages, and risks. Each of them has different tax consequences. You should meet with a lawyer and other professionals such as an accountant or a financial planner to help you decide the best way to accomplish your goals.
It is easy to get confused about the difference between a Will and Living Will. For more detailed information on Living Wills, see the section of this Chapter titled "Health Care Decisions."
A "Living Will" is a document in which you state whether you would want life supporting medical treatment if you became severly disabled or were placed on life support.
A "Will" contains your instructions about what is to be done with your property after you die.
In Illinois, if you die without writing a will, a law known as the Probate Act determines who gets your property once you die. This situation is known as intestate distribution. The following describes the legal rules of intestate distribution for some common situations. You should get the advice of a lawyer, and not rely on this summary alone, to make your decision about whether you need to write a will.
A will is a formal legal document in which you specify the persons or entities to whom you want to give your property after you die. The persons or entities who will receive your property are called beneficiaries. It also makes arrangements for how any debts you owe at your death are to be paid. If you have a child or children under age eighteen, you can name the person you want to be your children’s guardian if you die before they become adults. In your will, you also choose the person, called your executor, who you want to take the necessary legal steps to carry out the instructions you put in your will.
In your will, you can leave your property to anyone you choose, including charities or even perfect strangers. In your will you can create a trust to manage your property for your beneficiaries. There is no law that says you must leave your property to your family, with one important exception. If you are married, you cannot simply write a will which leaves nothing to your husband or wife. In Illinois, your husband or wife can renounce your will for any reason, whether you leave them everything or nothing.
If your spouse renounces your will, your spouse will get one-half of your estate if you have no children or other descendants, and one-third if you do. Moreover, regardless of your will, your spouse has a statutory right to an award of $20,000 from your estate. Whatever property remains in your estate after your spouse takes his or her share will be distributed to your other beneficiaries as you originally directed in your will. However, due to the fact that your spouse may now take a different percentage of your share than you intended, the other beneficiaries' share may increase or decrease proportionately.
The Probate Act also sets the requirements for writing a will. Your will must be in writing, and you must sign it. Two people who get nothing from your will must witness your signature. It is not a good idea to write your will yourself. Get professional legal assistance. In general, hiring a lawyer to draft your will is not expensive. If you try to do it yourself and make a mistake, your will could become meaningless and not accomplish what you intended.
If you want to change your will, you must create a separate document called a codicil. You (your lawyer) must write the codicil with the same formality as your will. You must sign it in the presence of two witnesses who get nothing from your will. If the changes you want are lengthy or significant, it may be a better idea to write an entirely new will. Consult a lawyer for advice on which option is best for you.
Once written, you can choose to revoke your will. This means to make it invalid, or to negate or cancel it. You can do this in several ways:
When a person dies, his or her property is often distributed through a legal proceeding in the probate division of their local Circuit Court. Usually, this happens in the county where the person died. Your survivors may find it necessary to go through this proceeding even if you have a will.
If you have a will, your executor will file your will with the local court clerk and then apply to the probate judge for a legal document called letters of office. If the probate judge is satisfied that everything is in order and approves of the person you named as executor, the judge will sign a court order requiring the court clerk to give letters of office to your executor. Once your executor has the letters of office, the executor has the legal authority to carry out your instructions in your will.
If you die without a will, or if your executor is unable or unwilling to take on the responsibility, anyone may file a request with the probate judge to determine the administrator of your estate. Anyone can be an administrator as long as the probate judge approves. Your family or the people who will receive your property have priority. The administrator is issued letters of administration, which provide the legal authority to settle your debts and distribute your property as specified in the Probate Act or as instructed in your will.
The probate court process can be long, complicated and costly, or relatively short, simple and inexpensive. This depends on the size of your estate and whether anyone tries to contest your will. Consult a lawyer for advice on how to make the process go as smoothly as possible.
Small estates do not have to go through the probate court process. The Probate Act spells out a different kind of procedure to distribute a small estate.
You are considered to have a "Small Estate" if you do not own any real estate and if the value of your other property is $100,000 or less.
The Probate Act requires your local court clerk to make available to the public a form called a small estate affidavit. This fill-in-the-blank form has spaces to fill in information about the person who died, his or her property, debts, will (if there is one), surviving family members, and people to whom property is left in the will (if there is one). A copy of the death certificate and a certified copy of the will (if there is one) must be attached to the affidavit.
Theoretically, anyone can complete and sign the small estate affidavit.
Note: an affidavit is a statement, made under oath, before a notary public, swearing, under penalty of perjury, that all of the information contained in the affidavit is true.
Once your heirs or family members complete and sign the affidavit, they can use it to obtain and distribute your property as directed by the Probate Act or as instructed in your will.
Another way to manage your property is through a device known as a "trust."
A "Trust" is a legal arrangement you create in which you split the legal rights to property. You give to someone called a "Trustee" the legal right to own and manage the property in the Trust by, for example, investing it or selling it. The Trustee has the responsibility to see that the property in the Trust is used to benefit the person named as the "Beneficiary." The Beneficiary of the Trust has the legal right to demand that the Trustee live up to that responsibility.
You can create a trust by drafting a trust document which sets out what property is to be put in to the trust, who the trustee and beneficiaries are and instructions on how to deal with the property in the trust. As with preparing a will, you should consult with a lawyer and possibly other professionals in drafting a trust. You may decide to create a trust for many reasons.
You can arrange to set up an intervivos or living trust while you are still alive, in order to avoid having the assets in the trust go through probate court when you die.
In the document used to create the trust, you can give instructions to the trustee on how to distribute the property in the trust after you die. Although you can name anyone as trustee, you may name yourself as both trustee and beneficiary of the trust while you are alive, so that you do not lose control of your property. The trust document will specify who becomes the new trustee and beneficiaries upon your death, and what the new trustee is to do with the property in the trust.
Owning property in joint tenancy is one way to simplify the process of distributing your property upon your death. The most familiar kinds of property owned this way are houses and bank accounts.
"Joint Tenancy" refers to joint ownership. If two people own a house as joint tenants, when one person dies, their ownership of the house passes automatically to the other person. This is known as the "right of survivorship." This requires neither a will nor the probate court.
In addition to houses and real estate, you can own bank accounts and other property in joint tenancy. There are specific legal requirements you need to meet in order to make sure that property is held in joint tenancy. Consult a lawyer for professional advice when deciding whether owning property in joint tenancy will accomplish your goals, and to make sure you meet the necessary legal requirements.
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