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Valid wills must comply with state laws

Like many, you may have specific ideas about what should happen to your property once you pass away. Perhaps you have a special niece to whom you would like to leave your grandmother's ring or a close friend who has always admired your car. As intimidating as it may seem, creating an estate plan is the only way to ensure those people receive your gifts. Without a will, the state of Illinois will determine how to divide your assets, and it may be nothing close to your wishes.

Sitting down and writing out your final wishes may seem the most expedient and affordable way to accomplish your goals. However, to reduce the chances that your survivors will misunderstand, alter or dispute your will, there are certain rules to follow to make your last wishes valid.

Is your will in order?

Each state has its own set of rules for the validity of a will. In some places, the thoughts you jot down in a notebook at your kitchen table may be just fine to pass as your last testament. In Illinois and most other states, however, the court will not accept that will and will conclude that you have died intestate, which means without a valid will in place. In order for your will to be valid, you must meet the following requirements:

  • You must be at least 18 years old.
  • You must have testamentary capacity, which means you understand that you are creating a will, who your natural heirs are, and the general scope and value of your estate.
  • You must have two witnesses who either watch you sign your will or can attest to the fact that you signed the will.
  • The witnesses may not be beneficiaries of your will.
  • The witnesses do not have to be present at the same time to validate your will.

Illinois probate courts do not recognize a handwritten will if you are the only one who signs it. Additionally, while some states accept nuncupative, or oral wills -- for example, those spoken on one's death bed -- this state does not. Therefore, if you imagine yourself distributing your goods at the last possible moment, you may find the courts will not support the say-so of those who happen to be close by.

Instead, it is wise to provide your loved ones with a solid and thorough will that complies with state laws and will not leave your family struggling to understand your intentions. You may find there are many options available for comprehensive estate planning if you seek information from a legal professional.

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Leonard F. Berg, Attorney at Law