A person whose estate exceeds these exemption or threshold levels needs to do some additional estate planning to minimize or eliminate death taxes. Making a will can be a fairly simple task if you dont have a complicated estate. Executing estate plan documents during the stay-at-home order can be a challenge. The property passes, instead, as part of the estate to the heirs, or the beneficiaries under a will. File a federal estate tax return if required. File an Illinois estate tax return if required. For example, an older parent may be going in for surgery and want to cover their bases if something goes wrong. I am personally committed to ensuring that each one of our clients receives the highest level of client service from our team. Many people believe that a will can be updated simply by handwriting or typing on the existing will and initialing the change. Stat. In contrast, an irrevocable trust requires the filing of separate fiduciary income tax returns based on income earned on the property held in such a trust each year after the irrevocable trust is created until its termination. While COVID-19 forced the legal industry to adjust, it appears that some of those adjustments were just what was needed to bring estate planning into the 21st century. Unfortunately, if the executor is a person, he or she may not receive a fee for their services to the estate if they signed the will as a witness, unless they are a supernumerary witness. The information presented should not be construed to be legal advice nor the formation of a lawyer/client relationship. A beneficiary is someone who will receive property or money under the will. Likewise, neither of your witnesses should be someone who stands to inherit from your estate when you die. Enter your email below for your free estate planning e-book. Two adults have to witness and sign the living will. Should I have a buy-sell agreement with my business partner and/or a succession plan for a family business? Illinois Executive Order 2020-14 (Mar. For paper copies, the witnesses and testator must physically compile all the signature pages within 10 days. Every effort has been made to provide accurate information at the time of publication. Putting off making a will can have disastrous results when you do not want your property distributed to your heirs as set out in the state statute. A trust, generally, is an agreement in which one or more persons (the trustee or trustees) holds and manages property for beneficiaries of the trust. (For a more general overview of the requirements for a valid will, see How To Determine if a Will is Valid.). Has your marital status changed since you made your last will? Joint tenancy is useful in the right cases. In other words, witnesses add another layer of validity to a will. Your will should be updated when any of the three situations change: If your will has been properly drafted, you should not have to update your will if new children or grandchildren are born or if named beneficiaries, executors, or guardians of minor children pass away. The power of attorney can now easily form a seamless part of a health care record, neatly kept in an electronic medical file. SmartAsset Advisors, LLC ("SmartAsset"), a wholly owned subsidiary of Financial Insight Technology, is registered with the U.S. Securities and Exchange Commission as an investment adviser. 505Waukegan, IL 60085, 22 E. Washington St., Ste. Check your email for your free UPDATED Guide to Divorce. Illinois's intestacy law gives your property to your closest relatives, beginning with your spouse and children. Illinois is one of a handful of states that technically allows electronic wills (e-wills). Beneficiaries: A testator can leave property to any beneficiary provided he or she is not a witness to the will. When it does, you may need someone else to speak or make health care decisions for you. If a trust is created, you must name a competent individual or trust company to manage the trust. In addition to an attorney, many other people can be involved in the estate planning process, including accountants, life insurance agents, trust officers, and financial planners. A WORD OF CAUTION. A Will must be in writing, signed by the testator and by two witnesses. This is not an offer to buy or sell any security or interest. writing a document that says you are revoking the will while using the same formalities you used to make your original will (see above). The will must be signed by the maker and must be witnessed by two witnesses in the special manner provided by law. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above). The applicable federal exemption is now "portable," meaning that the amount of the exemption that is not used by the first spouse to die may be usable by the surviving spouse if certain necessary steps are taken. You should not provide anyone with a power of attorney unless you place the utmost trust and confidence in that person. Powers of attorney for health care do not have many specific requirements for validity. Each executor or administrator must be approved and appointed by the court. Here are a few of the simplest options: Neighbours: If you choose to print your will at home or get it sent to you in the post, your neighbours will probably be the easiest option. In a power of attorney, you name an agent (an "attorney-in-fact") and you give that agent certain powers to act on your behalf. Supervised administration may be imposed at the request of any interested party, which then requires court approval for many things, like authority to sell an asset , that are not required under independent administration, thus increasing attorneys fees and requiring attendance at hearings on otherwise routine acts and functions. However, the Illinois estate tax threshold is not portable. Illinois law is also very specific on who can sign as a witness to a will. On June 26, 2021, Illinois adopted the Electronic Wills and Remote Witnesses Act. However, it is recommended that only adults do it to avoid any issue that may arise due to lack of competence. Trust assets avoid probate. Should a trust be created for your spouse, children or others? Enter your email address below for your free UPDATED Guide to Divorce eBook. For example, if the Bank is named as your executor, and your daughter works at the Bank, she should not sign the will as a witness, but her co-workers can. 350Lake Forest, IL 60045, 33 N. County St., Ste. Typically, an estate planning attorney could witness the document, but that may mean scrambling at the last minute for an appointment or coordinating a meeting quickly on the way to the hospital. At the death of the owner, the assets in the account are transferred to the designated beneficiary. The power can be conditioned upon the principal's incapacity . An attorney whos also acting as the executor of the will, meaning the person who oversees the process of distributing your assets and paying off any outstanding debts owed by your estate, can witness a will. Generally, a gift of property from a person to his or her spouse who is a U.S. citizen is not subject to a gift tax or an estate tax. If you have children, you should consider using a will to name a guardian for your children. Not having enough witnesses, improper execution of the documents by witnesses, failure to properly authenticate the signatures and failing to include the necessary acknowledgements by the witnesses such as finding the signer to be of sound mind. Any one joint tenant may withdraw all or a part of the funds in a joint bank account. The interview and forms are in English. A witness must be competent, meaning they must be of sound mind at the time they are signing the will as a witness. Thank you! (a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he It's something every parent thinks about--who will take care of my kids if I'm gone? In Illinois, a will must be: (1) in writing; (2) signed by the person making out their will to distribute their estate after their death, called the testator; and (3) signed by two witnesses while in the presence (generally the same room) of the testator. The statement is given directly to the doctor, as if the patient were able to communicate his or her wishes. No. Not adopting the best law to govern the administration of the will or trust and failing to utilize the form required by the state where the will or trust is administered. For additional information, please see Your Guide to Living Trusts. Neither witness should be a beneficiary of the will. Ilinois law assumes that a person is not "of sound mind and memory" if the will maker was determined by a court to be disabled and has been appointed a plenary guardian or limited guardian by the court. . Its a fairly common situation to find yourself in as a small business ownerfor one of a wide range of reasons youve decided its time to being a new partner into your business in some capacity. And, few practicing attorneys would tell you thats a bad thing. Joint tenancy is a common form of ownership for property. Now, however, the new Act changes everything. Predictably, COVID-19 and the resulting government shutdowns of businesses and encouragement of social distancing and remote work complicated the task of signing and witnessing these important estate documents (Notaries are also now permitted to act remotely under a separate but related piece of legislation). The best persons to sign as witnesses to your will are usually your lawyers employees. Two or more persons may also own property as tenants-in-common or tenants by the entirety. An executor must be a resident of the United States but does not have to be an Illinois resident. The power of attorney may also be used to supplement a living trust. They should feel comfortable leaning on the experience and experience of our attorneys as their counselors and advocates. The law in Illinois is constantly changing and although we do our best to keep our website current, you should not make any final determinations based on what you read here. It is similar to a POD designation described above. A "controlled expert witness" is a person giving expert testimony who is the party, the . Much expense of probate is avoided by utilizing independent administration of the estate. Finally, there is never a cost to speak with the Illinois attorneys that run our site and will talk to you on the phone or by e-mail for free. Every state requires that a certain procedure must be followed when a will is signed. . I am personally committed to ensuring that each one of our clients receives the highest level of client service from our team. If a platform like Docusign is not used to create and sign an electronic will, there is now an option to use multiple signature pages for the testator and witnesses. 755 Ill. Comp. A Will allows you to appoint an executor and (in Illinois) a guardian over your minor children. If you find a loved one's handwritten will that was unwitnessed, you might be in luck, depending on whether your state accepts holographic wills. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Some states require that they be dated as well. . Gifts to anyone else is a taxable gift, but is subject to an annual exclusion (discussed below) and the same lifetime exemption as for federal estate tax. Executors and administrators have certain duties to the court: Executors and administrators have certain duties as to estate property: In some situations , due to an intent to shift those duties to a person or entity not subject to direct court supervision, the assets will be transferred during life to a trustee of a revocable living trust (see below) and avoid the expense of probate. Will my estate be subject to a death tax? into the trust by placing it in the trustee's name as trustee of the trust. Revocable Trust: In Illinois, a revocable trust does not need to be witnessed or notarized to be effective. A bank or trust company also may be named as executor. The maker of a will must be 18 years old and be of sound mind and memory. How Do You Figure Out What Type Of Illinois Lawyer You Need? Individuals and Witnesses can now sign on multiple signature pages with one master document being compiled later on. Illinois law is also very specific on who can sign as a witness to a will. The major advantage is that creditors and taxing bodies must assert a claim for what they believe is owed within six months after publication of the death and claim notice in a newspaper and notification of any known creditors or those reasonably believed to be creditors, or the claim is barred. Each witness must sign the Will in the testator's presence. In addition, under certain circumstances, a person could make gifts for medical expenses and tuition expenses above the $15,000 a year limit if the medical payments and tuition payments were made directly to the medical provider or the education provider. However, Illinois probate procedures are very simple especially when independent administration is used, and the importance of avoiding probate can be exaggerated. A beneficiary's spouse may also be disqualified from serving as a witness. Talk to an Estate Planning Attorney. The trustee has management responsibility for the trust property. If you have neither a spouse nor children, your grandchildren or your parents will get your property. It may help to make two lists: one of the potential candidates who can witness a will and another of the people who cannot act as witnesses because they have an interest in the will. Being "of sound mind and memory" is not a high bar to reach, and most will-makers will meet this standard even if they are forgetful or physically unwell. Your sister cant be a witness to the will since shes a direct beneficiary. If there is no will the court appoints an administrator to settle the estate and make distributions as provided by law, after all debts and expenses have been paid. These are similar to a payable on death account. And sometimes it means a signer wants the Notary to perform a request that is completely outside the . The revocable living trust is primarily a vehicle for managing your property during your lifetime, including even if you become incapacitated, and might also allow you to pass your property on to your beneficiaries at death without probate. Because a trust is not filed in court, its provisions are private, unlike a Will, which must be filed in court at death. To do so validly, the will must designate Illinois as the state of its execution, be signed by the testator or by some person at the testators direction and in their presence, and be attested to in the presence of the testator by two or more credible witnesses who are located in the United States at the time of execution. This is the minimum number of witnesses required by state will-making laws. Plainly, the Act is a generational game changer for estate planning. For instance, although state laws regarding wills vary, states generally require you to be of legal adult age to make a will. However, the advantages of spending some money up front to have a well thought out and drafted plan, which is properly executed so as to be enforceable after death, cannot be overstated. One-Time Checkup with a Financial Advisor, enlisting the services of afinancial advisor, 7 Mistakes You'll Make When Hiring a Financial Advisor, Take This Free Quiz to Get Matched With Qualified Financial Advisors, Compare Up to 3 Financial Advisors Near You. If there is a will, the executor nominated by the maker of the will takes the place of an administrator and is the one who handles the estate. Some powers of attorney are limited in scope. Specifically, Ill. S. Ct. R. 213 (f) (3) provides that: Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information: (3) Controlled Expert Witnesses. The health care power allows specification of medical treatment desired, appointment of successor agents, and nomination of a guardian of your person. The trust agreement for a living trust usually provides that you are to receive all of the income of the trust and as much of the principal as you request. (a) Immediately upon the death of the testator any person who has the testator's will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue . The signatures of the principal and witnesses may be on the same or different pages provided the master document is compiled within 10 business days. SmartAssets services are limited to referring users to third party advisers registered or chartered as fiduciaries ("Adviser(s)") with a regulatory body in the United States that have elected to participate in our matching platform based on information gathered from users through our online questionnaire. The new law defines an electronic will as simply a will that is created and maintained as a tamper-evident electronic record. What is tamper-evident exactly? Preserve, manage, and insure assets during the probate administration. The living will declaration is not followed unless agents named in the healthcare power of attorney are not available. Executors and administrators are personal representatives. Are an Illinois resident, and Sign the living will. In others, they don't even have to watch the will-maker sign, as long as the person later tells the witnesses that he or she signed the document. Changes in the law can also create a need to update your estate plan. After death, the will is presented in court . Illinois law allows adults the right to accept or refuse medical treatment as they see fit. When you're talking about a will, a notarized signature is not the same thing as a witnessed signature. So, you could ask the couple that lives next door to you or a couple you know at work to act as witnesses to your will. An experienced attorney is skilled in drafting estate planning documents that are precise and clear. This party may not be one of the witnesses. For example: (1) if property of any kind is held in joint tenancy with a relative who receives welfare or other benefits (such as social security benefits) the relative's entitlement to these benefits may be jeopardized; (2) if you place your residence in joint tenancy, you may lose your right to advantageous senior citizen real estate tax treatment; and (3) if you create a joint tenancy with a child (or anyone else) the child's creditors may seek to collect your child's debt from the property or from the proceeds of a judicial sale. A Revocation of Will must be executed in the same manner as a will. They should feel comfortable leaning on the experience and knowledge of our attorneys as their counselors and advocates. Theyre of legal adult age (i.e. It also states that "any person generally competent to be a witness may act as a witness to a will". Working with an adviser may come with potential downsides such as payment of fees (which will reduce returns). This content is designed for general informational use only. You must make your will in writing in Illinois. Writing: An Illinois will must be in writing. A health care power allows the delegation of this right to an agent. Sometimes the basic structure of a business will be altered through corporate recapitalizations, the creation of partnerships, or the establishment of a pension or profit-sharing plan as well as documents to effect change in control and ownership. , Many people believe that a will can be updated simply by handwriting or typing on the existing will and initialing the change. Generally, the people you choose should be: When its time to sign the will, youll need to bring both of your witnesses together at the same time. The cost of your consultation, if any, is communicated to you by our intake team or the attorney. Each witness must also be who they say they are, to prevent fraud. Defend the Will if challenged as not being enforceable due to improper execution, being created under undue influence or by a person not of sound mind or other deficiencies. The existence of a fiduciary duty does not prevent the rise of potential conflicts of interest. This is not the case. You can find Illinois's laws about making wills here: Estates 755 Illinois Compiled Statutes 5 Probate Act of 1975 Article IV Wills. Unlike other legal documents, a will generally isn't valid unless two adult witnesses watch the will-maker sign it. As you go through this planning guide, it will be helpful to know some Will-related jargon. The change of the presence requirement is revolutionary, as presence now includes being in a different physical location from another person, but able to know the person is signing a document in real time using audio-video communication. Stat. He hasexperience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation. Another option is to simply revoke your prior will, by drafting and execution a Revocation of Will document. In a long illness, a general power of attorney may not work as smoothly as a living trust. Without probate, the claim can be brought within two years from the date of death. The trustee or trustees may be one or more individuals you trust to handle your financial affairs (or it could be yourself during your lifetime) or a bank or trust company. Illinois does not permit handwritten (holographic) wills. The order amending Rule 213 became effective July 1, 2002, and applies to all cases pending as of that date. In Illinois: The maker of a will must be 18 years old and be of sound mind and memory. When making a will and testament, its important to follow the rules in your state to ensure the will is valid. A guardian is someone you name to take care of your minor children after you die. Sell or otherwise dispose of property that is not distributed in kind. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Some may also elect to utilize a transfer on death designation for bank or investment accounts and a transfer of death deed for real estate. All joint tenants must agree to the sale or mortgage of the property. Please refresh the page and try again, By clicking "Find a Lawyer", you agree to the Martindale-Nolo, Estates 755 Illinois Compiled Statutes 5 Probate Act of 1975 Article IV Wills, Do Not Sell or Share My Personal Information. After death, the will is presented in court and, after being proven valid, is put into effect and its provisions are carried out. More so, electronic willsthose not physically printed on paperare now an acceptable form of will in Illinois that can be probated just as paper wills have for decades. Estate planning documents include wills, trust agreements, beneficiary designations for life insurance, 401(K) plans and IRAs, powers of attorney for healthcare and property, buy-sell agreements , and living wills. 755 Ill. Comp. Even if there are no trustee's fees to pay, there will be costs and inconveniences during your lifethe initial cost of setting up the trust and transferring your property into trust, inconvenience of maintaining a separate bank account and books and records for the trust, annual filing of tax returns may be required under certain circumstances. Transfer assets as needed (like stocks, bonds, and bank accounts). Nolo's Quicken WillMaker & Trust produces a letter to your executor that generally explains what the job requires. Your health care power of attorney should be consistent with any preferences you may express in a living will (see below). In Illinois, you may revoke or change your will at any time. Type and print your will using a computer, or you can use a typewriter. Illinois has very specific rules for how wills must be prepared. Witnesses to POAs. For instance, say you plan to leave money in your will to your sister and her husband with the sister being the executor. The person who creates the trust is known as the "grantor," "settlor," or "trustor." Here's the typical procedure: In some states, the witnesses don't have to be in the same room when they sign the will. But if there are witnesses, they can come to court and testify that the will-maker stated the document was his or her will, and appeared to be of sound mind and not under any undue influence. How will the death taxes on my estate be paid? 755 Ill. Comp. Choosing witnesses to your will is the final piece of the puzzle in ensuring that its legally valid. Banks, law offices and other places of business may be willing to provide witnesses and a notary. Some Of The Best Illinois Legal Questions From 2022, Lawyers As "Experts" On TV Might Not Be One, Illinois Lawyers Who Will Sue Big Companies, Five Insurance Company Tricks When You Are In A Car Accident In Illinois, Winning A Premises Liability Lawsuit In Illinois. File the decedent's final income tax return. If the decedent left a will (referred to as dying "testate"), the person who manages the estate is called the executor. 5/4-6. Updated 4-18-23. 755 Ill. Comp. The witnesses must know that the document is a will, or the document won't be valid. Your witnesses' job is to confirm that you signed this will and were of sound mind. Joint tenancy may have other consequences.