A “Last Will and Testament,” or more simply a “Will,” is one of the most common estate planning instruments people use for their estate and legacy planning. A Last Will and Testament allows a testator (the person making the will) to allocate, according to his or her own wishes, how he or she would like to allocate and distribute the property in his or her estate (such as cash on hand, real and personal property, and even digital property). A will also appoints one or more executors, which is a topic discussed in other FAQs and free educational resources. A will can also address matters such as appointing a guardian for minor children, specifying care for pets, and can also address many other issues. The laws applicable to the valid creation of a Last Will and Testament vary by state. For more information, see Wills 101, included in the free educational materials.
Yes. A will should always be in writing, and must satisfy all other legal requirements. While there are a few states that may enforce an oral will, these situations are rare. A will must also be witnessed. For additional information on will execution and witness requirements, see the free article: Wills 101.
The law does not legally require an individual to use the services of an attorney to prepare his or her will. To be valid, a will must meet the legal requirements of the individual’s state, and the individual creating his or her own will must be of legal age (18 in most states), of sound mind, memory, and competence, and not under any restraint or duress. There are many instances and situations in which an individual that satisfies the legal minimum requirements to create a will should still consult with a qualified attorney. Some common examples include, without limitation, when the value of the total assets in the future estate are or may rise to a level greater than the federal or state tax exemption amounts, if the individual owns a business, if the individual owns multiple residences or other real property in more than one state, if the individual believes that someone may challenge the will (whether an upset family member or other person or entity that is dissatisfied with what the will does and does not state), when the will is intended to provide for individuals with special needs, such as a family member with a physical, developmental, or other disability, and any instance in which there are other complex situations that the individual feels require the input of a legal professional.
No. After you have drawn up your will (whether by yourself, through the use of a form document, with a computer program, or through an attorney), you are not done. You must still properly execute the will and have the required number of proper witnesses attest to your signature. You should sign every page of the Will. The qualified, disinterested witnesses will watch you sign your will, then sign an attestation stating they saw you sign the document, that you were over the minimum legally required age to create a will in that state (generally 18 years old), and that in their opinion, you were of sound mind, memory, and understanding, and not under restraint or duress. In all states, at least two witnesses are required as proof of the will’s validity (some states require more than two qualified witnesses). There are different requirements applicable to your completion of a trust, power of attorney (financial or medical), and other estate documents.
As a general rule, witnesses must be disinterested, meaning the witnesses have no potential conflict of interest. The witnesses should not be people who receive any gifts under the will or who might otherwise benefit from your death. Witnesses must be at least eighteen years old, and be of sound mind, memory, competent, and not under any duress. Witnesses must be at least eighteen years old, and be of sound mind, memory, competent, and not under any duress.
Illinois law requires that you sign your witness in the presence of at least two (2) “disinterested” witnesses. A witness is “disinterested” if he or she has no potential conflict of interest. No one that is or could: (i) receive any gifts, assets, property, or other benefit of any kind under your will; (and/or (ii) receive any benefit from your death, should ever sign as a witness to your will.
Witnesses must also be at least eighteen years old, and be of sound mind, memory, competent, and not under any duress at the time they are acting as a witness.
For additional information on will execution and witness requirements, see the free article: Wills 101.