A Matter of Will

Many of us understand that having a will is a prudent decision, especially when there are children involved. However, if you are like most couples, taking the step of having this document prepared seems to be as appealing as cleaning out your basement following a flood. You know it needs to be done, but you can easily come up with 50 or 60 reasons why you can’t make the commitment—too expensive, you don’t know an estate lawyer, you don’t really have a sizeable estate, it would be unlikely that both you and your spouse would die at the same time, etc…

The following are a few basics in understanding Illinois law on what a will is and what it does.

In Illinois, the person making the will (the testator) must meet the following requirements in order to have the capacity to make the will:

• Must be 18 years or older;
• Must be of sound mind and memory; and
• Must possess the power to give away personal or real property.

In order for a testator to then create a valid will, the following criteria must be met:

• The will must be in writing;
• The will must be signed by the testator or by some other person at the direction of the testator; and
• The will must be attested to in the presence of at least two credible witnesses.

A will allows the testator to distribute any assets in a specific manner to designated persons or organizations. Further, a will allows the testator to appoint an individual to act as the executor of the estate to essentially manage the distribution of any assets and take any other action as set forth by the testator. For example, the executor may be responsible for carrying out the testator’s directives for funeral arrangements. When children are involved, the testator can specifically choose a responsible guardian for his or her children in the event that the testator is a single parent or is not survived by a spouse. Moreover, a will allows the parent to set up a trust for the financial needs of the children.

If a person dies without a will (also known as intestate), any assets owned by the individual and not subject to a beneficiary designation are distributed according to Illinois law of intestacy. The law specifically provides the manner in which any assets are divided and further provides for an administrator to be appointed to administer the estate. Under these circumstances, the court generally appoints a guardian for any minor children during the period of administration of the estate and until the children turn 18.

Most married couples own their assets in joint tenancy, which results in the surviving spouse automatically receiving full ownership upon the death of the first spouse. However, for those situations where spouses own property separately, the laws of intestacy provide that the deceased spouse’s assets be divided with half of the assets going to the surviving spouse and half of the assets going to the children. In the case of a single parent, the children receive 100 percent of the estate. Consider the possibility of your eighteen-year-old son receiving a large sum of money upon death. How likely will he be to spend that money wisely on a college education rather than a new sports car?

Clearly, the implications of not having a will can be far-reaching and even disastrous. The benefits of seeking advice from a well-qualified lawyer are worth the time and initial investment. Tomorrow will be here sooner than you think, and you owe it to yourself and your loved ones to have an estate plan in place. TPW