By Attorney Sarah Albert and Attorney Antonio Flores
Talking about finances and property distribution with family can be difficult, but it's always best to have a plan in place in case the unexpected happens. CTM Legal Group can assist with the often overlooked task of estate planning.
A last will and testament (hereinafter, “will”) is a document that controls how a person's property gets distributed at death. In Illinois, anyone over the age of eighteen years old can make a will, so long as that person is of competent and sound mind and memory. In order for the will to be deemed valid it must meet the following criteria: The will must be (1) in writing, (2) signed by the testator, and (3) signed in the presence of two witnesses who are not beneficiaries to the will itself. After the death of the testator, the original executed will is filed with the court in the county where the testator died, and the will's validity is examined and evaluated by the court, and then admitted to probate, so long as the will meets the criteria for admission. Probate is the legal process whereby the court supervises the administration of a decedent's estate.
During the pandemic, Illinois passed the Electronic Wills and Remote Witnesses Act (the “Act”) in response to the overwhelming need for the state to allow electronic will creation, attestation, and probate procedures. 755 ILCS 6/1-1 et. seq. For example, a witness to a will can now be in a different physical location than the person signing the will, if that witness knows the person is signing in real time using audio-video communication. The Act also created requirements for the admission of electronic wills into probate, including that a petition must affirm that a tamper-evident electronic will has not been altered apart from electronic signatures. This new law was meant to supplement existing law so that it could comport to an ever-changing legal landscape. However, it is always wise to consult with an attorney when executing a will, digitally or otherwise.
The provisions of a written will are carried out by the executor of the decedent's estate. An executor is the representative(s) of the estate, tasked with administering the estate, pursuant to the instructions set forth in the will. In choosing an executor, you should pick someone like a close relative or a trusted attorney to carry out your wishes. The law requires that person to act in the estate's best interest, even if that person is also an heir to the estate. People often choose their surviving spouse or children to act in this role. If an executor is not chosen but a will is in place, the court will likely appoint someone to be the administrator. This person has essentially the same role as an executor, but this person can refuse the appointment.
If you do not have a will in place at the time of your death, that is referred to as intestacy. This could result in a lot of hardship for your surviving heirs, beneficiaries, creditors, and the like. Those parties will be dealing with your estate in probate court. Illinois has the Probate Act of 1975 in place, which outlines intestate distribution:
- If there is a surviving spouse and also a descendant (e.g., a child) of the decedent: half of the estate goes to the surviving spouse and other half goes to the decedent's descendants in equal shares, per stirpes (meaning, if an intended beneficiary of the estate dies before the testator, his portion goes to his heirs).
- If there is no surviving spouse but a descendant of the decedent: the entire estate goes to the decedent's descendants per stirpes.
- If there is a surviving spouse but no descendant of the decedent: the entire estate goes to the surviving spouse.
- If there is no surviving spouse or descendant of the decedent but a parent or sibling survives, or even a descendant of a sibling survives: the entire estate goes to the parents and siblings in equal parts, allowing a double portion to the parent if only one remains, and the portion to the descendants of a deceased sibling per stirpes . . .
755 ILCS 5/2-1 et. seq. The order of distribution and portioning can become very complicated to parse out, so it is again wise to consult with an attorney to draft your will, or when a loved one's estate goes into probate. CTM Legal Group is happy to assist with all your estate planning needs this holiday season.
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