Whether you know it or not, you have a will. Everyone has a will. Either one drafts his
or her own will, or the state they reside in writes a will for them. This state written will is
generally known as your state's laws pertaining to intestacy.
Generally your will is your single most important estate planning document because
a validly executed will controls the disposition of your property, and probably more
critically, the identity of the person or persons who will care for your dependents. Without
a validly executed will, the decedent is said to have died intestate, and as already noted
the decedent’s property passes under your state’s laws of intestacy.
It may be okay for your property to pass under the laws of intestacy. After all, if this
happens you are deceased. It will not affect your life. Or you may not have an estate
either because you literally have no property or because you have no property that would
pass through your estate. You might have joint property, accounts with designated
successor beneficiaries, property in trust, or some other property that does not pass
through your estate.
Keep in mind, however, that the worst probate cases we have handled, in terms of
work required and hence legal fees earned, have been intestate estates. An intestate
estate is generally not a problem if the heirs are a spouse, children, parents, or even
siblings. If you start going to heirs who are out further than that, in terms of children of
predeceased siblings or, much worse yet, nieces and nephews or cousins, then
identifying and tracking down those heirs can become a major undertaking. If heirs can't
be located then funds may have to be deposited with the County Treasurer, making your
estate a difficult and expensive proposition.
As with most estate issues, this can be prevented with simple planning. Heirs do still
need to be identified, even if you have a will. However the issue is far less pressing since
these heirs are not beneficiaries, unless named in the will.
If you do not wish to have anyone benefit from your estate, you should at least give
your estate to a charity.
In Illinois, every will must be written, signed by the testator or some person in his or
her presence and by his or her direction and attested in the presence of the testator by
two or more credible witnesses. A will that qualifies as an international will under the
Uniform International Wills Act (755 ILCS 10/1 et seq.) is considered to meet all the
requirements for executing a will. 755 ILCS 5/4-3.
A will may be revoked only by (1) a testator, or some person in his or her presence
and by his or her direction and consent, burning, canceling, tearing or obliterating the
will; (2) execution of a later will declaring the revocation; (3) a later will to the extent that it
is inconsistent with the prior will; or (4) execution of an instrument declaring the
revocation and signed and attested in the manner prescribed for the signing and
attestation of a will. 755 ILCS 5/4-7(a).
You generally want to have a clause in any new will revoking all of your prior wills.
While other methods effectively revoke a will, all sorts of issues of proof can arise and a
simple sentence revoking all prior wills could avoid costly litigation.
Generally, wills are not revoked by changes in circumstances, condition or marital
status of the testator. However, in the event of dissolution of the testator’s marriage, or
declaration of invalidity of the testator’s marriage, every legacy, interest or power of
appointment, or nomination to fiduciary office given to a testator’s former spouse prior to
the entry of judgment for the dissolution of marriage or declaration of invalidity of the
marriage takes effect in the same way as if the ex-spouse predeceased the testator. 755
After total revocation, the testator may only revive a will by reexecuting it or by
executing a new instrument, declaring revival, with the same signature and attestation
requirements. After partial revocation, a testator may revoke the revoking instrument,
thus reviving the revoked part as if it had never been revoked. 755 ILCS 5/4-7(c).