A will is a formal written document in which you pick people that you want to give your property to after you die. These people are called your beneficiaries
In your will you can also name a:
- Guardian to look after your children, if you have any and if they are still minors when you die; and an
- Executor to carry out the instructions you put in your will.
A will is helpful to have if you have any special requests for how you want your property divided up because if you die without a will, your estate will be divided up according to the Illinois Probate Act.
What’s the difference between a will and a living will?
A living will is a document containing your preferences such as if you want life supporting medical treatment if you become severely disabled or are placed on life support. A living will states what you want while you are still alive.
A will is a document in which you state your instructions about what is to be done with your property after you die. A will states what you want after you have passed away.
For more information, see Creating a living will.
What happens if I die without a will?
If you die without a will, your estate will be divided up according to the Illinois Probate Act. Exactly how your property is transferred depends on the kinds of heirs that are still alive when you die.
If you have a spouse
If you are married at the time of your death and have:
- Children who are living, then your spouse will receive half of your estate and the other half will be divided equally between your children. The court will also award your spouse a reasonable amount of money from your estate as support for 9 months. This support is for your spouse and any child that is financially dependent on you at the time of your death. The child can be a minor or an adult.
- If one of your children has died before you and had children of their own, your grandchildren by that child will receive that deceased child's share, to be split evenly amongst your surviving grandchildren.
- No children, then your spouse will receive your entire estate.
If you don't have a spouse
If you were single, divorced, or widowed at the time of your death and have:
- Children, then your estate will be divided equally between your children. The court will also award each child that is financially dependent on you an amount of money from your estate. The child can be a minor or an adult. The award must be used to support the dependent child for 9 months and will go to a guardian or other representative on the child's behalf.
- If one of your children has died before you and has had children of their own, your grandchildren by that child will receive that deceased child's share, to be split evenly amongst your surviving grandchildren.
- No children, your estate will be divided amongst your parents, siblings, or other relatives according to the Probate Act.
If you have no relatives
If you have no known relatives, your property will either:
- Go to the county or the state
- Go to any distant relatives that can be tracked down
This is merely a summary of how property is transferred under the Probate Act and there are some exceptions. You should speak to an attorney to decide if you need to write a will.
For more information, see Dying without a will.
Who can I leave my property to?
Anyone. You can leave your estate to family members, organizations, charities, debt collectors, or even complete strangers. It's all up to you.
If you are married at the time of your death, there are different rules for how much of your estate you must leave your spouse. It is important to consult an attorney on these rules, if you can.
What property am I not allowed to give in my will?
There are some types of property that you aren't allowed to include in your will because they aren't yours to give.
You can't include property:
- You hold in joint tenancy
- Payable to another designated person
- Held in trust
If you are unsure what property you aren't allowed to transfer in your will, you should speak to an attorney.
Can I leave my spouse nothing in my will?
In Illinois, you cannot leave your surviving spouse nothing unless your spouse consented to being disinherited. Your surviving spouse can renounce, or reject, your will for any reason, whether you leave them your entire estate or nothing at all.
If your spouse renounces your will then your spouse will get one-half of your estate if you have no children or other descendants. If you have children, your spouse will receive one-third. If you die without a lot of property, your spouse is allowed to claim $20,000 from your estate and the rest of your beneficiaries are awarded any property that is left.
This only applies to your surviving spouse. If you are divorced, your ex-spouse does not need to be included in your will at all and your ex-spouse cannot renounce your will.
Writing your will
Under the Illinois Probate Act, there are certain requirements you must follow to make your will valid. You must:
- Be 18 years or older;
- Be of sound mind and memory;
- Have your will in a written document. Simply telling your family how you want your property divided isn't enough; and
- Sign the will and have 2 people who are getting nothing from your will witness your signature.
When you are writing your will there are some things to consider:
- Who should be your executor to carry out the instructions in your will?
- Who should be your beneficiaries and receive a part of your estate?
- Do you have any debts you want paid at your debt?
- Do you want to make any charitable donations?
- Should you create a trust for your spouse or children?
Writing a will is very difficult. It is a good idea to speak to an attorney about creating your will so that after you die, your property is divided exactly how you want. An invalid will is subject to the Probate Act and might not accurately reflect your wishes.
Changing your will
Even a minor change to your will must be written on a separate document called a codicil. You must sign it. You must have two people who get nothing from your will witness your signature on this document. If there are a lot of things you want to change in your will, it might be better to simply write an entirely new document.
Revoking your will
You can revoke, or make invalid, your will at any time. You do not have to write a new will if you revoke your original. However if you revoke a will without creating a new one, your estate will be divided up according to the Illinois Probate Act.
To revoke your will you can:
- Destroy the document or instruct someone else to destroy the document. This includes burning, tearing, or even shredding the piece of paper.
- If you write an entirely new will, you can include a sentence explaining that your original will is now invalid. If you forget to include this sentence, don't worry. Your original and your newest version will be compared and any differences in the newest version will be how your property is divided.
- You can simply write on a separate piece of paper, stating that your will is revoked. This written statement must be signed by 2 witnesses who aren't getting anything from your will.
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