Wills 101: The 5 “W”s - Who, What, Where When, and Why
W #1 - “Why” do People Create a Will vs. Dying Without an Estate Plan?
At one time or another (usually as young children), we all learn that we will inevitably depart this world. Despite the bliss of youth, and the feeling of immortality that can come with being young, we all eventually face and internalize this reality. Proverbs 3 reminds us that there is a season for everything and death is one of the seasons of life. Whether we plan for it or not, it will happen, and the lives of others will go on. It is important for us all to understand and plan for this reality, so that we are not taken by surprise and left unprepared. Death commonly brings more than just the pain of loss. It can bring financial hardship, loss of lifestyle, loss of property rights and ownership, and a complete shift in the comforts and opportunities of life to which our friends and family would otherwise be entitled. These are the hardships of death that can often be prevented with proper planning. By creating a valid Will or other estate plan, a person is attempting to ensure that his or her final intentions are followed (to the extent allowed by law).
The law governing Wills in Illinois is controlled by statute (755 ILCS 5/1 et. seq.) and is called the Illinois Probate Code. When we die, some portions of our property (such as joint tenancy, life insurance, and pensions) may be handled under other areas of law. Aside from the instances in which federal law controls, each state sets its own laws as related to the distribution of our property. While many states follow the Uniform Probate Code, Illinois law is substantially different. “Intestacy” or “Intestate Succession” is a mandatory system used to devise property that is not otherwise handled under a legally valid testamentary device (such as a will). Intestate law also sets the default rules for issues not covered in a valid Will or if the Will does not give away all the decedent’s possessions.
This article is not a criticism of intestacy law. This law has roots in common law (or judge made law) and is a governmental attempt to set default rules that law makers believe are fair on a general basis, in the absence of other controlling directives from the deceased individual. It may be helpful to think of intestacy law as analogous to the following example:
A group of people assemble in a room, and are given a piece of paper and a pencil. The people are told to (1) write their name on the piece of paper; and (2) are given the option of also writing down the name one of five colors (red, blue, green, pink, or orange) on the piece of paper. If they do not pick a color, they are given a default. Once done, the default color is revealed as blue. Surely some people picked blue anyway, but the ones that chose a different color would have received blue if they had not chosen one of the other four colors. While blue is not bad, many of the individuals would have preferred a different color.
An “Heir” is an individual that may receive something by default under intestacy law. While people often view individuals such as friends, in-laws, and stepchildren as important players in their lives, since these individuals are not blood relatives (heirs) or other collateral family members, they never receive inheritance under Illinois intestate law. If someone wants to leave property to any of these individuals at death, it needs to be handled by a proper legal instrument, such as a valid Will.
W #2 - “What” Is a Will?
A “Last Will and Testament,” or more simply a “Will,” is one of the most commonly used estate planning instruments. A Will is simply a legal document that allows an individual to specify the distribution of his or her property after death. To be valid, the Will must comply with testamentary formalities as established by the governing state statute, and cannot otherwise violate the laws governing the distribution of property upon death. The laws applicable to the valid creation of a Last Will and Testament vary by state. A Will can be used by itself or in combination with other estate planning instruments, such as a Trust (See Trusts 101: The 5 "Ws" - Who, What, Where When, and Why).
As a point of clarification, a Will (Last Will and Testament) is completely different from a “Living Will.” As noted above, A Will (referring to a Last Will and Testament) is a document in which you state your instructions about what is to be done with your property after you die. A Living Will, is a completely separate legal instrument that states your preferences while you are still alive, such as if you want life supporting medical treatment in the event that you become severely disabled. A Living Will is not otherwise addressed in this article.
W #3 - “Who” is Involved?
There are a number of people involved either directly or indirectly in a Will. First, there must be an individual (called the “Testator”) who goes through the process of making the Will. The testator is the person intending to dispose of his or her property at death. The term “testator” is gender neutral; it can be used to refer to a male or a female who creates a Will.
- A Testator may use the services of a licensed attorney or may create the Will himself/herself (whether from scratch or through use of form document) if the individual is confident he or she can do so and create a valid document. The use of an attorney is often essential based upon the specific desires or complexities of the Testator’s estate. People often involve their financial consultant tax professional, and/or accounting professional in the estate planning process.
- Every Will appoints an individual (called an “Executor”) to manage the decedent's estate. The term Executor is now considered gender neutral in most U.S. states. In the past, the term Executor was deemed masculine, and Executrix was used as the feminine root of the word. The executor must be over the age of majority (in most states, including Illinois, that means at least 18 years old), a U.S. resident, and be of sound mind (meaning not judged incapacitated by a court). Unless the executor declines the position or is not qualified, the executor will undertake the obligations of the executor in relation to the Will upon the testator’s death. This generally includes going through the probate process (See Probate 101: the 5”W”s) in court. It is common for the testator to appoint one or more alternative executors, to act in the event that the appointed executor is unwilling or unable to act as the executor when the time comes.
- Additionally, every Will includes one or more beneficiaries, who will receive the property of the Testator. Beneficiaries are generally the testator’s spouse (if married), descendants, and other family members, but also commonly include friends, heirs-in-law, and organizations (such as the testator’s church or a local or national charity to which the Testator wants to leave a gift. In the event that a Will does not dispose of all of the testator’s assets, certain individuals that are not named in the Will may also inherit under intestacy.
A Will can also set forth Guardians for the care of minor children following the death of the parents. There are other circumstances in which guardianship may be appropriate even if one of the child’s parents survives. The nuances related to the appointment of a child guardian is beyond the scope of this article. (For an additional discussion of guardianship, See Guardianship Basics).
Other individuals may also be involved in a Will, and the above is just a basic description of the primary parties involved.
W #4 - “When” can a Will be Created, Modified, Revoked, and finally Applied?
A Will can be created at any time by a person of legal age, of sound mind and memory, and who creates the Will under his or her own free will (without undue influence or coercion). The Will must be properly drafted and executed in compliance with the governing state law. The testator has the right to modify or revoke his or her Will at any time (so long as the individual remains of sound mind and memory, is not coerced, and is not under other undue influence). The Will applies upon the death of the testator.
W #5 - “Where” and How is a Will Created?
All states allow for the creation of a Will. To be enforceable, the Will must comply with all applicable laws. In general, a Will should be created in accordance with the laws of the state that you live in. The Illinois Probate Act sets certain requirements an Illinois resident must follow to make your Will valid under Illinois law, including without limitation:
- The testator must be at least eighteen years old;
- The testator must be of sound mind and memory;
- A Will must be a written document (whether hand written on paper with pen or typed). Simply telling your family how you want your property divided isn't enough;
- The Will must be signed by the testator in the presence of two people who are getting nothing under the Will, and each of these people must also sign as Witnesses.
While most people understand that having an estate plan is important, many people fail to take action before it’s too late. In so doing, they generally bring about a result that is not in the best interests of their loves ones as compared to the result available through active estate planning.
Disclaimer - This article is provided for educational purposes only. Nothing contained herein should be considered "legal advice", and this information should not be relied upon by any reader as such. The information presented herein is not necessarily presented based upon the laws within any specific state, and such laws vary from state to state. The provision of this discussion shall not be deemed to create an attorney-client relationship between the reader and EPM and/or any other third party. This discussion was not provided as a "legal advertisement" and the readers have no duty or obligation to provide any compensation for the information provided herein. The determination of the need for legal services and the choice of a lawyer are extremely important decisions that should not be based solely upon advertisements, endorsements, or self-proclaimed expertise.