What Is Required for a Will To Be Valid in Illinois?

Creating a will in Illinois ensures that the Illinois probate courts will distribute your assets according to your wishes after your passing. However, you must do more than simply jot down your testamentary documents on paper in order for the judiciary to enforce them. 

Your will in Illinois must meet specific legal requirements to be valid. You must have been of sound mind and over 18 years old when drafting and executing it. You must also have two witnesses sign the document in front of a notary. 

If these requirements are not met, the courts may invalidate your will, leaving your real property and assets to be distributed according to Illinois intestate laws, rather than left to your desired heirs and beneficiaries.

Drafting and properly executing a valid will in Illinois is an essential step in estate planning. The drafting process can be done by a licensed state attorney or by yourself with the help of an attorney-reviewed template, like the one found at Lawrina. 

According to Illinois Probate Code (755 ILCS Art. 5 of the Probate Act of 1975), a testator or testatrix (the person making the will) must be an adult who holds the requisite testamentary capacity (mental capacity) to draft their estate planning documents. Your will in Illinois must also be in writing, and you must execute (sign) the legal document in the presence of witnesses who are not beneficiaries of your estate.

After properly executing your will, you must store it in a safe place and inform the executor (the named person responsible for carrying out the will’s instructions) where you stored the document. The law also demands that the testator or testatrix reviews and updates the will periodically to reflect any changes in personal circumstances or distribution of asset changes.

Finally, your testamentary document must comply with the strict legal requirements outlined in 755 ILCS Art. 5. Seeking the assistance of an attorney can help ensure that your will in Illinois is properly drafted and executed and in compliance with the legal requirements.

The following information summarizes the state’s probate codes for drafting a valid and enforceable will in Illinois.

The executor selection provision of a will in Illinois designates the person or business entity responsible for carrying out the instructions in the document. Also known as a “personal representative,” the executor will manage your property held in probate, pay any outstanding debts and taxes, and distribute the remaining assets to your heirs and beneficiaries according to your will's instructions. The executor must also file your will in Illinois probate court immediately after your passing and defend your “original intent” against any disputes or challenges related to your estate. Therefore, choosing a trustworthy executor capable of performing such complex tasks is crucial.

Beneficiaries and heirs of a will in Illinois are individuals or organizations who will receive the remaining assets from your estate. Heirs are family members who you name in your will in Illinois or who will automatically inherit if you die intestate (without a wholly valid will in Illinois). When drafting your testamentary documents, the law requires you to “know the natural objects of your bounty.” In other words, you must determine which beneficiaries and heirs will take from your estate and understand how your decisions will affect those not named in your will (otherwise known as disinherited persons). Your will in Illinois must also clearly identify each beneficiary and the specific property or assets they will receive.

When drafting a will in Illinois, you must also consider the needs of any children or dependents in your estate. Designating a guardian for them ensures that your loved ones will be cared for in the event of your death. Without guardian designation, the court may appoint someone to look after your children or dependents, which may not align with your last wishes. When selecting a guardian, you should choose a responsible person who shares your values and can take care of your children.

According to 755 ILCS Art. 5, §4-1, a testator or testatrix drafting a valid will in Illinois must “recognize the nature and scope” of their estate assets and real property (but not necessarily the full value) to be distributed. This means you must accurately assess and divide your property in your will in Illinois when planning your estate. The assessment and distribution sections of a will are important because they allow you to disperse your estate as you wish. 

Estate assets may include:

Clearly identifying who benefits from your will in Illinois after you pass away helps prevent will contests or litigation during probate. Additionally, it can mitigate estate taxes and other expenses, ensuring that your loved ones will receive more of your property.

Informing your executor about your burial wishes is important when drafting a will in Illinois. You can ensure that your funeral arrangements follow your religious beliefs and preferences by including specific instructions. Your will in Illinois can further comfort loved ones during difficult times and prevent disagreements about funeral arrangements. The burial disclosure section also alleviates the financial burden on family members because this provision in the will in Illinois can direct the estate to use its own assets to pay for funeral expenses.

You must sign and notarize your will in Illinois to make it legally binding. Notarization helps prevent probate disputes by showing that the testator or testatrix was of sound mind when executing the will. Notarization involves verifying your identity and ensuring you signed the testamentary document of your own free will, without fraud or undue influence.

If you wish to modify your will in Illinois, you must follow the probate code requirements outlined in 755 ILCS Art. 5, §4-4. You can make any changes by creating a new will or adding a codicil (amendment or supplement) to your existing testamentary documents. Keep in mind that you must execute codicils according to the same requirements as your original will.

To be legally valid, modifications to your will in Illinois must be done with “testamentary intent,” meaning that you intended to make the changes freely without outside influences, coercion, or duress. Additionally, you must hold the requisite legal capacity to make the modifications.

Once you draft the changes, you should sign and date your new will in Illinois or the codicil in the presence of at least two witnesses. The witnesses must also sign your new testamentary documents or codicil in your presence.

You should hold on to the original will and any prior codicils, as well as inform your executor of your modifications. Doing this ensures that courts will enforce your testamentary document changes should disputes arise during probate.

A handwritten will in Illinois is a testamentary document written by the testator’s hand. The courts will only consider a handwritten will In Illinois valid if it meets certain requirements, such as being entirely in the testator's handwriting, signed by the testator, and witnessed according to 755 ILCS Art. 5, §4-3. Handwritten wills without witness attestation are known as holographic wills and are invalid under Illinois law.

As mentioned above, Illinois probate courts will accept handwritten wills under certain conditions. The State’s Probate Act of 1975 makes no reference to how testamentary documents should be written, meaning any will writing (by machine or hand) that is appropriately signed and witnessed is valid under the law.

While handwritten wills may be legally valid in Illinois, better estate planning options are available. Handwritten wills are often difficult to read or interpret, and they may not include all the necessary components required by 755 ILCS Art. 5. Additionally, handwritten wills in Illinois are generally subject to greater challenges or probate disputes when compared to machine-typed documents.

Therefore, the law recommends that you have an estate attorney review a handwritten will in Illinois before execution to ensure that the document is legally valid and clearly expresses your last wishes.

Lawrina provides the public with pre-drafted will templates approved by experienced attorneys, which you can easily customize to suit your needs. If you're confident in writing a will in Illinois, you can use Lawrina's testamentary document template as a starting point. Working with Lawrina saves valuable time because you can complete the form questions and download your completed will in seconds. However, you should always have an estate attorney check your will in Illinois for 755 ILCS Art.5 compliance before executing it. 

Drafting and executing a valid will in Illinois requires careful consideration of the state's legal requirements. The process involves proving you are of sound mind and hold the requisite capacity to make decisions about your estate. Additionally, your will must be in writing, signed by the testator, and witnessed by at least two individuals who are not beneficiaries.

Per the Probate Act of 1975, you must properly execute your will in Illinois for the courts to consider it valid. Failure to comply with the Code may result in a judge setting aside your testamentary documents, leaving the courts to distribute your estate according to the state's intestacy laws rather than your wishes.

Generally, you should seek legal guidance after drafting your will in Illinois to ensure that the state carries out your last wishes upon passing away. It is crucial to remember that a will in Illinois must adhere to the procedures found in 755 ILCS Art. 5 to be considered valid and enforceable.