A Last Will and Testament is a legal document that is used to express an individual’s wishes with regard to his/her estate assets and what should be done with them upon the Testator’s (creator of the Will) death. Gifts made in a Will may be general or specific and may be made to as many different beneficiaries as the Testator wishes. Along with serving as a vehicle for making gifts of estate assets, a Will is the only opportunity the parent of a minor child has to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed.
This is a common explanation provided by people who have yet to execute a Will. The truth is that every adult, regardless of age, should have a Will. You can always update your Will and add to your estate plan when you are older and have a family and/or a larger estate; however, you are never too young to have a basic Will in place.
The relationship between the value of an estate and the need for estate planning is often misunderstood. While the need for estate planning does increase as your estate grows, you do not need to own valuable assets to benefit from executing a Will. You undoubtedly care what happens to the assets you do own right now. Moreover, you probably care who handles the probate of your estate and you certainly have an opinion with regard to who should be appointed as your children’s guardian if you have children. All of this can only be accomplished with a Will.
When a decedent dies without a valid Will in place the estate is referred to as an “intestate” estate. If you die intestate, the State of Illinois (or the state where you reside at the time of your death) decides how your estate assets are distributed using the Illinois intestate succession laws. Usually, this means that only close relatives will inherit from the estate. Moreover, dying intestate means you give up the ability to decide who oversees the probate of your estate.
Given the prevalence of the internet in today’s society, people often make the mistake of thinking they can save time and money by using a “DIY” Will form they find on the internet. Unfortunately, you are more likely to cost your loved ones unnecessary time and money when it comes time to probate your estate by using these forms. DIY Will forms are notorious for having mistakes, errors, and omissions that lead to protracted litigation during the probate of an estate. Given the importance of your Will, coupled with the fact that you won’t be here to correct problems that arise when it is probated, it should be clear that working with an experienced attorney is the only way to go when creating your Will.
Shortly after your death, the individual appointed as the Executor of your Will should submit the original Will to the appropriate court for probate. The Executor is also required to notify beneficiaries and heirs of the estate as well as creditors that probate is underway. Creditor claims are reviewed and paid if approved. Any federal and/or state gift and estate taxes due must also be paid. Eventually, the terms of your Will are used to determine how the remaining estate assets are distributed.
One of the most common mistakes people make when creating a Will is to simply appoint a spouse, friend, or family member as the Executor of the Will without giving any real consideration to whether the individual is the best person for the job. The Executor of a Will has a number of duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background.
During the probate of your estate, any interested party has the right to contest the validity of the Will submitted for probate using one of several allowable legal grounds. Contrary to what many people believe, a Will cannot be contested simply because the contestant is unhappy with the inheritance left to them (or lack thereof). Instead, a Will contest must allege, and eventually prove, a legal reason why the Will is invalid. The Executor of the Will must defend the Will during the litigation. Ultimately, if the Will is declared invalid, the court will look for a previous, valid, Will to use to probate the estate. If none is located, the state intestate succession laws will be used to distribute the estate. If the Will is upheld, the probate of the estate continues using that Will.
If you have questions relating to a Last Will and Testament or how it fits into your estate plan, contact the experienced estate planning attorneys at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your free consultation.