Do You Need a Will?

Although a will is not required by law, there are many benefits to having a will when you die. Having a valid will insures that your property passes to the people you want to receive it, in the amounts that you determine, rather than being distributed according to Illinois law. Additionally, a will informs both the court and your loved ones of your choice for guardianship of your minor children.

What Happens if You Die Without a Will?

If you die without a will in Illinois (called dying "intestate"), state law determines who receives your property and in what amount. Illinois law applies inflexible rules and specific formulas for calculating what each of your heirs will receive. The law does not assume or consider your wishes, nor does the law make a distinction among particular belongings that would be distributed as part of your estate. Without a will designating who should receive what, your heirs may argue over who gets what, and the court might force the property to be sold and the money from the sale divided. A will can help eliminate such difficulties.

If you die intestate and leave behind a spouse and children, Illinois law provides that one-half of your estate passes to your spouse, and the remaining one-half is split equally among your children. However, if any of your children are minors (and therefore legally unable to handle property), the court will have to set up expensive guardianship estates for them and appoint someone to handle their inheritance until they reach their majority. By having a valid will, you avoid this problem by leaving your entire estate to your spouse or by designating a trustee or custodian for your children.

You cannot leave your property to a relative, friend, charity, or church without a will. A will gives you the opportunity to benefit the people and institutions you think are deserving. You can use your will to determine the amount of your estate that will pass to the beneficiaries you choose, regardless of their relationship to you, and you can leave specific items of sentimental value to those you believe would enjoy them the most.

Wills and Your Children

In addition to your property, a will can allow you to settle issues relating to your minor children. If you die without a will and your children have no surviving parent, the court must name a guardian--grandparents or other close family members do not automatically get custody of the children. A will is crucial to inform the court of your wishes and to help insure that your children are cared for by someone you trust. Naming a guardian in your will can save the cost of a court-ordered guardianship, a process that is often more expensive than the cost of having a will done in the first place.

Another benefit of having a will is that you may designate an executor to administer your estate. This is especially important if you have minor children. For instance, the person you think is the best person to raise your children as their guardian might not be the best money manager. A will allows you to name both a guardian and an executor who will work together to safeguard your children's welfare. People sometimes designate a member of one parent's family as a guardian of the minor children and a member of the other parent's family to serve as the executor. This allows both families to feel that they have a hand in the upbringing of the children.

Finally, for those with larger estates, a properly drafted will may enable you to minimize or even eliminate estate taxes, insuring that more of your money goes to your family.

How Do You Make a Will?

To draft a will, you must be at least 18 years old, mentally competent, and free from improper influence. Your will must be written, signed, and witnessed according to Illinois law. You may change your will simply by adding to it (called a "codicil") or by drafting a new will. Whether you change your will by a codicil or a new will, each document must be properly written, signed, and witnessed.

Once you have a will, you should review it if the circumstances of your life change, including marriage, divorce, birth of a child, or a significant change in financial status. This will help insure that your will continues to fit your needs and wishes.

This website is not intended to constitute legal advice or the provision of legal services. By posting and/or maintaining the website and its contents, Lucas Law does not intend to solicit business from clients located in states or jurisdictions outside of Illinois wherein Lucas Law or its individual attorney(s) are not licensed or authorized to practice law.