A Last Will & Testament in Illinois

By Beverly Bird

To make a last will and testament in Illinois, you must be at least 18 years of age or be emancipated from your parents by marriage or court order. Your will must be in writing, signed by you and witnessed by two people. Someone may sign your name for you if you are unable to do so, but that person cannot be one of your witnesses. Illinois accepts self-proved wills that might be eligible for simplified probate. A self-proved will is one with an attached notarized statement by you and your witnesses that the will is authentic.

Rights of Spouses

Under Illinois law, a spouse has certain rights that can supersede your will. Regardless of what you may or may not have bequeathed to him, he is entitled to a living allowance off the top of your estate in the amount of $10,000 for up to nine months after your death. He is also entitled to claim up to half of your estate if you have no children and if you leave him less than that in your will. If you do have children, his claim is limited to one-third. However, Illinois allows you to transfer property to a trust under certain circumstances to limit the value of your estate and your spouse’s share. This law is complicated, however, so you should not attempt to decipher it without speaking with an attorney.

Automatic Revocation

If you divorce after making your will and your ex-spouse is a beneficiary or the executor of your estate, those provisions are erased from your will as of the date you receive a divorce decree. Any bequests you made to her are treated as though she predeceased you.

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Anti-Lapse Law

If a beneficiary predeceases you, Illinois law contains anti-lapse clauses to address this. Unless you specifically state in your will that you want the matter handled in some other way, any property you leave to someone who dies before you transfers to his descendants. If he has no descendants, the bequest reverts back to your estate. Because any bequest to an ex-spouse is treated as though she predeceased you in the event of a divorce, her share would therefore pass to your children but could potentially pass to her children from another relationship. If she does have children from another relationship and you want to safeguard against those children receiving a bequest, talk to a lawyer about wording your will to prevent it.

Disinheritance of Children

You can disinherit a child in Illinois as long as you state in your will that you are doing so. If you have a child after you make your will and you don’t mention him in your will, either granting him a bequest or disinheriting him, Illinois will treat this situation as though you just forgot to update your will to include him. In this case, he would receive a portion of your estate equal to what he would have received if you had not written a will.

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Georgia is the only state, as of 2010, to allow a testator, or the person making a will, to disinherit a spouse. This makes the state one of the safest places to get a divorce from the perspective of planning your estate. There is no window of time when a spouse can be granted part of your estate if you die while you are separated or your divorce is in progress but before it is final.

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