RNH Law Blog

The Five Biggest Misconceptions About Wills in Illinois

1. My Illinois Will Means No Probate

This is one that I hear all the time. Clients will let me know that they were told by another attorney that their current Will

won’t have to go through probate. Unfortunately, that is wrong more times than not. The

simple existence of the Will is not enough to avoid probate. Simply put, there’s nothing that can be put into a Will to stave off probate. No clause or magical language in a Will avoids probate.

If the sum of your estate is more than $100,000.00, or if your estate includes real estate, then your estate is headed to probate in Illinois. While it’s true that some estates under $100,000.00 can avoid probate through the use of a Small Estate Affidavit, that does not hold true if there is any real estate involved. Once there’s real property in the estate, it needs to go through the probate process.

2. The Eldest Child is Entitled to be the Executor of the Parent’s Estate

No. Nope. Not true at all. This one seems to hang on no matter how much time passes. The reality is that most people will name their eldest child to be the executor of their estate. However, there’s no rule in Illinois that says the eldest child needs to, or even should be, the executor of your estate.

The qualifications are laid out in the Illinois Probate Act, 755 ILCS 5/6-13. It states, “A person who has attained the age of 18 years and is a resident of the United States, is not of unsound mind, is not an adjudged person with a disability as defined in this Act and has not been convicted of a felony, is qualified to act as executor.” 755 ILCS 5/6-13(a).

In the end, your estate is yours to do with as you please (mostly). With a Will in Illinois, you get to decide who the executor of your will is so long as they are qualified to do so.

3. Your Will and Assets Remain Private

This one can be partly true in Illinois but only in certain circumstances and only regarding your assets.

Let’s break it down this way, upon your death your Will needs to be filed with the Court. 755 ILCS 5/6-1(a) states, “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 an attachment and compel the production of the will, subject to the provisions of Section 5.15 of the Secretary of State Act.” Once your Will is filed, it’s a matter of public record.

Your assets may be a different story though. Throughout the probate process, the executor of your estate may be required to file accountings with the court that would end up viewable by the public. However, under an independent administration there’s less reporting to the court and more of your assets will remain private.

The reality is that your Will does not remain private in Illinois. However, there are some instances where your assets do not need to be disclosed. But keep in mind that the total dollar amount of your estate will be in the public record, even if the individual assets may not be disclosed.

Talking with your attorney and balancing your desire for privacy with your other estate planning goals is the best way to ensure your estate is handled the way you want.

4. I Don’t Need a Will Because I Don’t Own Anything

The size of your estate has no impact on how your assets are distributed after your death. If you die without a Will in Illinois, your assets will be distributed through the intestacy laws in effect. Although you may have a modest estate, you’ve worked your life to earn it. There’s no reason why it should be distributed in a way that you don’t want. A Will helps to ensure that your estate is left to the people you want, not what the Illinois statute directs.

Also, some people will tell you that a simple piece of paper with your wishes written down is as good as a Will in Illinois. This is not true, in the least. There are formalities that need to be followed. If you don’t follow them, then your wishes may be invalidated. Even worse, someone could end up using a small estate affidavit to thwart your wishes by distributing your estate in the way they see fit. Without a Will, or other estate plan, they will have no guidance on what you want.

The easiest way to make sure that your estate is distributed the way you want is to work with an estate planning lawyer. Get the right advice for your specific situation and the estate plan that will meet your needs.

5. It’s Cheaper to Make a Will on My Own

It absolutely is cheaper to draft a Will on your own instead of going to a lawyer to get one drafted for you. But only in the initial costs. There are a variety of websites that allow you to download a form Will and insert your own information. This is a one-size-fits-all solution to a very specific and personal situation… and it doesn’t work well.

While an online Will drafting website can guide your through the process of drafting your Will, there will be very little room for your specific situation. A form Will cannot cover ever situation out there and there’s a chance that your situation will be outside the limits of the form Will. This creates issues by leaving all, or portions, of your estate outside of your Will. If that happens, those portions of your estate not covered by your Will pass through Illinois intestacy law. The statute decides how your estate is distributed at that point, not you.

Furthermore, when a Will isn’t clear on a person’s assets, the chance for a Will contest is increased drastically. By using a form Will, there’s a higher likelihood that your estate will be contested. This means that a court will get involved and your estate can be depleted paying the fees to fight that contest in court.

By employing an estate planning attorney in the beginning, you avoid the problems that come with do-it-yourself solutions. In the long run, you also save money and ensure your wishes are followed.

Conclusion

The only way to really know what a Will can, and can’t, do in Illinois is by working with an experienced estate planning attorney. Here at RNH Law we work with you to design an estate plan that suits your specific needs. You can rest assured that your estate will be distributed the way you want. Furthermore, your estate planning goals will be the focus of our work and you can rest assured that we will accomplish those goals in the most efficient manner possible.

Call or e-mail us today to schedule your estate planning consultation!