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QUESTION: DO I NEED A WILL?
ANSWER: If you die without a will, Illinois law determines what happens to your assets and minor children. If you want to change these results, you need a Will, no matter what your age or wealth. IT IS NOT TRUE THAT THE STATE TAKES YOUR PROPERTY IF YOU DIE WITHOUT A WILL.
Every person who is 18 years old and is of "sound mind and memory" can create a will. A Will must be in writing, signed, and attested by two or more credible witnesses.
Results you can change by executing a Will:
1. Without a Will, a probate court will decide who will be guardian of your minor children. To change this result and nominate a guardian, you must execute a Will. A court proceeding still will be necessary to vest the guardian with powers, but the judge will be aware of your choice of guardian, and that nomination usually is followed.
In the Will you can authorize the guardian to change the child's place of residence and indicate that your children should not be separated. You can name two persons to be guardians - one to make personal decisions (guardian of the person) and one to manage money (guardian of the estate.) Also, to save substantial cost, you can indicate that no surety shall be required of any guardian.
2. Without a Will, if you are married with children, your "probate assets" will be distributed half to your surviving spouse and half to your children. This is not the preferred distribution for most married couples. In a Will you can leave your probate assets all to your spouse. If your spouse dies before you, then the assets go to your children (perhaps in trust.)
NOTE: If an asset transfers automatically at your death, like life insurance or a joint tenancy home, then it is not a "probate asset."
NOTE: In Illinois, your Will cannot disinherit your spouse- the spouse can "renounce" your Will and take a 1/3 share of your probate assets (if you had children) or a 1/2 share if no children.
3. Without a Will, the executor of your estate must purchase a surety bond in the probate proceeding. A Will can waive the requirement of surety on the bond, saving hundreds or thousands of dollars.
Results you cannot change by executing a Will:
1. Under state law, children receive their inheritance at age 18. To delay distribution, a trust must be created. Distributions will be delayed until the age you choose. The trustee will allow earlier distributions according to your instructions.
2. A WILL DOES NOT AVOID PROBATE. Probate is required to legally transfer title of probate assets. Probate is costly, (often between $2,000 and $8,000 in costs and fees) and the estate cannot be closed to allow final distribution of assets until 6 months after the court filing and publication of notice in the newspaper.
Cost to prepare a Will: A will for a single person costs $400 - $600; for a married couple -- $600 - $800 per couple. Adding a testamentary or living trust increases the cost to $800- $1,000 per person.
Note: This column provides general information related to the law designed to help readers understand their own legal needs. This column does not provide legal advice. Please consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between the reader and the author of this column.
QUESTION: DO I NEED A WILL?
ANSWER: If you die without a will, Illinois law determines what happens to your assets and minor children. If you want to change these results, you need a Will, no matter what your age or wealth. IT IS NOT TRUE THAT THE STATE TAKES YOUR PROPERTY IF YOU DIE WITHOUT A WILL.
Every person who is 18 years old and is of "sound mind and memory" can create a will. A Will must be in writing, signed, and attested by two or more credible witnesses.
Results you can change by executing a Will:
1. Without a Will, a probate court will decide who will be guardian of your minor children. To change this result and nominate a guardian, you must execute a Will. A court proceeding still will be necessary to vest the guardian with powers, but the judge will be aware of your choice of guardian, and that nomination usually is followed.
In the Will you can authorize the guardian to change the child's place of residence and indicate that your children should not be separated. You can name two persons to be guardians - one to make personal decisions (guardian of the person) and one to manage money (guardian of the estate.) Also, to save substantial cost, you can indicate that no surety shall be required of any guardian.
2. Without a Will, if you are married with children, your "probate assets" will be distributed half to your surviving spouse and half to your children. This is not the preferred distribution for most married couples. In a Will you can leave your probate assets all to your spouse. If your spouse dies before you, then the assets go to your children (perhaps in trust.)
NOTE: If an asset transfers automatically at your death, like life insurance or a joint tenancy home, then it is not a "probate asset."
NOTE: In Illinois, your Will cannot disinherit your spouse- the spouse can "renounce" your Will and take a 1/3 share of your probate assets (if you had children) or a 1/2 share if no children.
3. Without a Will, the executor of your estate must purchase a surety bond in the probate proceeding. A Will can waive the requirement of surety on the bond, saving hundreds or thousands of dollars.
Results you cannot change by executing a Will:
1. Under state law, children receive their inheritance at age 18. To delay distribution, a trust must be created. Distributions will be delayed until the age you choose. The trustee will allow earlier distributions according to your instructions.
2. A WILL DOES NOT AVOID PROBATE. Probate is required to legally transfer title of probate assets. Probate is costly, (often between $2,000 and $8,000 in costs and fees) and the estate cannot be closed to allow final distribution of assets until 6 months after the court filing and publication of notice in the newspaper.
Cost to prepare a Will: A will for a single person costs $400 - $600; for a married couple -- $600 - $800 per couple. Adding a testamentary or living trust increases the cost to $800- $1,000 per person.
Note: This column provides general information related to the law designed to help readers understand their own legal needs. This column does not provide legal advice. Please consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between the reader and the author of this column.
