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Do I Need A Will In Illinois

Illinois Estate Planning Questions and Answers

DO I NEED A WILL IN ILLINOIS?

What happens to my property if I don’t have a Will?

In Illinois after you pass away your real estate (your house and/ or land) and your personal property (the money in your bank accounts and your other assets) is known as your “Estate.”

If you don’t have a Will and you own real estate (a house and/ or land) or your personal property (the money in your bank accounts and your other stuff) is worth more than $100,000 someone (usually a relative) will have to open an intestate Probate Case for you. The Court will then appoint someone to be the Administrator of your Estate (manage the property of your Estate). The Administrator will prepare an inventory (list) of everything in your Estate, pay debts against your Estate, and distribute the balance of your Estate to your heirs.

If you don’t own real estate (a house and/ or land) AND your personal property (the money in your bank accounts and your other stuff) is worth $100,000 or less, it is possible that a Small Estate Affidavit can be used to distribute the balance of your Estate to your heirs.

If you are married and you and your spouse own your house and/or land in joint tenancy with right of survivorship, the house and land should automatically pass to the joint tenant and that property should not have to go through probate.  But when the surviving spouse dies, it most likely will have to go through probate.

Who your heirs are will be depends upon whether you are married or not, whether you have kids or not, and – basically – your family tree. For instance:

(a) If you are married and have kids (either over 18 or under), and both your spouse and your kids survive you:
½ of the balance of your Estate will go to your surviving spouse, and
½ of the balance of your Estate will go to your surviving kids and be divided among them equally.

This means that if you are married with a 2 year old son and both your spouse and your son survive you, your surviving spouse will end up with ½ of the balance of your Estate and your surviving son will end up with the other ½ of the balance of your Estate.

(b) If you are not married (never married, divorced, widowed), but you do have kids (either over 18 or under), and your kids survive you:
the entire balance of your Estate will go to your surviving kids and be divided among them equally.

(c) If you are married, but you do NOT have kids, and your spouse survives you:
the entire balance of your Estate will go to your surviving spouse.

(d) If you are not married (never married, divorced, widowed), you do NOT have kids, but each of your parents and all your brother and sisters survive you:
the entire balance of your Estate goes to your parents, your brothers, and your sisters and is divided among them equally.

Of course, if you Make a Will, you can name exactly who you want to manage your estate (Executor) and exactly who you want to inherit your property.

I live in Illinois & have children under the age of 18. What happens to them if I don’t have a Will?

If you don’t have a Will, someone (usually a relative) will have to open a Probate Case for you. Then, in addition to appointing someone to be the Administrator of your Estate (manage the property of your Estate), the Court will appoint a person or persons to be the Guardian of the property and of the person of your child(ren).

This means that, if you do NOT have a Will that names someone to act as the Guardian of the property and of the person of your child(ren) and your child is left without a parent to care for them, one or more of your surviving family members and/ or friends will have to petition the Court to be named Guardian of the property and of the person of your child(ren).

Of course, if you Make a Will, you can name the person you want to be the Guardian of the property of your child(ren) and the person you want to be the Guardian of the person of your child(ren). This can be the same person or two different individuals.

If you have minor children, the ability to name a Guardian for your children in a Will is probably the single, most important reason to Make a Will.

REASONS TO CONSIDER A REVOCABLE TRUST IN ILLINOIS:

What is a Revocable Trust?

A Revocable Trust is a type of trust that you create during your lifetime. A Revocable Trust is called “revocable” because it can later be amended (changed) or revoked (taken back). A Revocable Trust is created by making out and properly executing a trust document.

Once the Revocable Trust is created, it becomes an entity (person) separate from you, and it can hold your property – i.e. your real estate (your house and/ or land) and your personal property (the money in your bank accounts and your other stuff) – for your benefit and/ or the benefit of your family.

Property transferred to your Revocable Trust is held in the name of the Revocable Trust, but is – generally – managed the same way as if it was still in just your name.

For instance, during your lifetime, you will not need to obtain a separate tax ID# or file a separate tax return for your Revocable Trust.

Why might I want a Revocable Trust instead of a Will?

Unlike a Will, a Revocable Trust has the advantage of being able to be used to manage your property for your benefit and the benefit or your family in the event of your disability.

Also: In Illinois after you pass away, if you own real estate (a house and/ or land other than in joint tenancy) or your personal property (the money in your bank accounts and your other stuff – like stocks, bonds, corn or beans in the elevator or on the farm) is worth more than $100,000, even if you have a Will, someone (usually a relative) will have to open a Probate Case for you in order to pay your debts and distribute your property.

If you have a Will, the Court will appoint the person you have chosen to be Executor of your Estate to manage your Estate. The Executor will prepare an inventory (list) of everything in your Estate, pay debts against your Estate, and distribute the balance of your Estate to the people you have named in your Will. As you might expect, all of this takes and inordinate amount of both time and money.

If, however, you created a Revocable Trust and you transferring all of your real estate (your house and/ or land) and the majority of your personal property (the money in your bank accounts and your other stuff) so that your total Estate is worth $100,000 or less, it is possible that all of your property could be distributed to those you name in your trust simply and easily – without spending the time or money necessary in a Probate Case.  And you should also know that setting up a revocable trust costs only little more than a Will.

Of course, if you choose to Create a Revocable Trust, it is best to also have a companion simple Will that transfers your Estate to your Revocable Trust for distribution according to the instructions in the trust – just in case you forget to do that while you are alive.

WHY DO I NEED A HEALTHCARE POA IN ILLINOIS?

What is a Healthcare POA?
A Healthcare POA (power of attorney) is a legal form that you can use to name someone to make healthcare decisions on your behalf. The person you name to make health care decisions on your behalf is known as your “agent,” and has ultimate authority to make health care decisions for you, including the decision of when life-sustaining treatment should be given or withheld.

Why do I need a Healthcare POA?
A Healthcare POA (power of attorney) allows you to name the person you want to make healthcare decisions on your behalf in the event that you cannot. Also, a Healthcare POA allows you to direct the things your agent should take into account in making healthcare decisions regarding life-sustaining treatment.

In other words, if you Prepare a Healthcare POA and name – in advance – the person you want to speak for you and make healthcare decisions in the event you cannot, it is more likely that your healthcare will be managed the way you would wish in a situation where you are unable to communicate your desires yourself.

WHY MIGHT I NEED A PROPERTY POA IN ILLINOIS?

What is a Property POA?

A Property POA (power of attorney) is a legal form that you can use to name someone to act on your behalf with regard to property and financial matters. The person you name to act on your behalf with regard to property and financial matters is known as your “agent,” and has the authority – unless limited – to sell and transfer your property, including your real estate (your house and/ or land) and your personal property (the money in your bank accounts and your other stuff).

Why might I need a Property POA?

A Property POA (power of attorney) can be useful if you want a trusted person to be able to pay bills on your behalf from your personal bank account or if you have some other type of property that you want them to help you manage.

Basically, if you Prepare a Property POA and name a trusted person to act on your behalf in the management of your property, your trusted person will be able to sell and transfer your property on your behalf.

Both a Health Care POA and a Property POA can be modified or revoked during your lifetime.  A Property POA ceases to be effective on your death.  For that reason it is not a viable estate plan in and of itself.

READY TO CREATE YOUR ESTATE PLAN? STILL HAVE QUESTIONS?

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Our Estate Planning attorneys serve the following counties in Illinois: Warren, Henderson, Hancock, McDonough, Knox, & Mercer, Rock Island and Peoria.

The information provided on this page and the pages associated with it are intended to provide general information. Each situation is unique, and we recommend that you Contact one of our Experienced Estate Planning Attorney if you need assistance with a particular legal matter.