What is a Will?

A last will and testament is a set of instructions what you want done with your property after you die.  That sounds pretty simple, and it can be.  But with wills and trusts, you have to be careful.  Many areas of the law are based on common sense.  But wills and trusts are kind of tricky.  And they are very state-specific, meaning what is allowed in one state may not be allowed in another.  Some states allow holographic wills (you write it yourself, sign it, and put it away in the safe deposit box til you die), but Illinois does not.

Many people don’t have a will (or a trust, power of attorney or other estate planning document).  That is never particularly good, but it isn’t necessarily bad, depending on your circumstances.  You really should talk with an attorney to determine whether it would be good or bad for you.  Please call me 815-459-2253 or email me scottnnolan@attorneynolan.com so we can at least discuss it.

Do you Need a Will?

At a minimum, you will find that a Will is generally necessary to safeguard your estate.  Why?  Because if you don’t set forth in your Will to whom you want your property to go, the state will impose its own scheme of distribution. That may be okay with you.  But it might not be.  You at least need to know what that statutory scheme is.

What Does a Will Do?

A Will primarily disposes of your assets and provides a guardian for your children if they are minors at the time of your death.

The property that a Will disposes of is those assets that you owned in your own name alone immediately preceding your death.  The Will has no effect on property you owned in joint tenancy with someone else, or on the proceeds of life insurance that had a beneficiary already designated, or on assets held in a trust owned by you.

Many people think, “Well, then, since my property is in joint tenancy, I don’t need a will.”  That is correct – or at least partially so.  If husband and wife own their house in joint tenancy, then if the husband dies, his interest in the property automatically passes to his wife.  No need for a will.  No probate.  No muss, no fuss.  But what about the surviving wife?  She now owns the house by herself and not in joint tenancy.  And if she dies, the house doesn’t automatically pass to another person; it goes through her estate. If she did not have a will, then the state’s statutory scheme will determine who gets the house.

Imagine a common scenario: husband and wife are driving and are involved in an accident in which the husband is killed immediately and the wife survives for one hour.  The house automatically passed from the husband to the wife upon his death.  And when his wife passed away an hour later, the house devolved to the beneficiaries set forth in the state’s statutory scheme.

You need to control your own estate plan and not let the state impose one on you.  A will is the place to start.

Is a Will by Itself Sufficient?

Your Will determines who receives your property upon your death.  But it doesn’t necessarily determine how the property gets to that beneficiary.

A Will is a document, a piece of paper.  An important piece of paper, to be sure, but it is just a piece of paper.  By itself, it won’t force the bank to transfer your savings account to your children, or force the investment account to go to your designated charity.  The Will requires someone to enforce the provisions of your Will, and that person is the executor.

Assets can be transferred in one of two ways:  formally or informally.  Probate is the formal way to handle an estate.  Probate is a court proceeding that determines that the will is good and then makes sure that the executor accomplishes the provisions of the Will.  Probate can be very good.  If there are conflicts among the beneficiaries or with creditors or debtors, it is important to be able to bring the issue to the court and have it resolved, once and for all, by the judge.

But probate can be expensive and time-consuming.  So the Illinois legislature provided that in certain cases (where the estate is relatively small and other conditions are met) a small estate affidavit can be completed by the executor or one of the beneficiaries and presented to the bank, investment account or other person holding an asset of the estate, upon which that holder must distribute the asset to the beneficiaries.

The small estate affidavit is very handy, but it has its drawbacks:  it is limited to small estates, and the affiant (the person who signs the affidavit) can be personally liable for any distribution made under the affidavit that was not proper.

Is a Will the Only Device You Need?

A will or a small estate affidavit may not be sufficient to handle all the assets of a decedent’s estate.  That is why the estate planning field employs other devices, most particularly trusts, powers of attorney for property and powers of attorney for health care (living will).

What Estate Planning Tools Do You Need?

What do you need to best dispose of your estate the way you want it done?  That depends upon the type and amount of assets you have, the people you wish to be beneficiaries, and the way that you want those assets distributed.  Those are the issues that determine the shape of your estate planning and the devices you employ to achieve it (will, trust, power of attorney for property, power of attorney for health, etc.).  That is what we discuss and you decide upon.