Many clients erroneously believe that executing a will negates the need to
open a probate estate. The steps for probating a will are outlined in the pages on
supervised executors, independent executors, and probate with will annexed. In
order to avoid probate you must arrange your assets in such a way as to avoid
having any probate assets. Generally, any assets held in your name alone are
probate assets. Any assets held jointly with a right of survivorship, or any assets
that may have a successor beneficiary designation are not probate assets and
pass to your successors by operation of law.
This discussion may drill deeper than most clients will care to explore, but you
do need to keep in mind that if no one knows that you have a will, no one
may ever know that you ever had a will. Your intended beneficiaries need to
know that you have a will, where to find the original will, and they need to be able
to access that will.
Illinois law presumes that you died intestate, without a will. So, if you
do not make it obvious that you have a will it may be all too easy for people to do
things with your estate, against your intentions. This kind of thing happens all of
the time, and once people take from your estate it is a very big deal to try
to undo that taking.
The presumption that you died intestate is rebutted by presenting proof of a
valid will. Sielbeck v. Grothman, 248 Ill. 435 (1911). As stated, the steps for
presenting this proof are outlined and explained in the pages linked above. Once
a probate court enters an order admitting your will to probate, your will is
presumed to be valid and every reasonable presumption will be made in favor of
proper execution and attestation of the will. In re Estate of Willavize, 21 Ill 2d 40
(1960). In other words, one only has to prove so much, unless there is good
reason to question the details (such as whether you really knew what you were
doing when you executed your will).
If the testator was blind or the will was drawn by a beneficiary or relative of the
testator, the testator is still presumed to have known the contents of the will unless
there was nothing to show that the maker knew the nature or contents of the
document. Barber v. Barber, 362 Ill 634 (1936).
A will which is executed and attested by the necessary number of witnesses is
presumed to have been executed with required will formalities. Proof of an
attesting witness' handwriting raises a presumption that the witness duly attested
the will in the presence of the testator and that all required formalities have been
complied with. Hobart v. Hobart, 154 Ill 610 (1895).
Even without an attestation clause, upon proof of the genuineness of the
signatures of the testator and the witnesses a will is presumed to have been
properly executed. Mead v. Trustees of Presbyterian Church, 229 Ill 526 (1907). A
will is presumed to have been executed on the date shown for its execution. Miller
v. Blumenshine, 343 Ill 531 (1931).