What is a Will

All attempts are made to provide accurate information. However, nothing contained herein should be relied upon as legal advice or legal authority. Nothing contained herein should be substituted for the advice of competent legal counsel.

A Will is a written instrument that provides for the disposition of your estate when you die. It directs who receives your property, when and how they receive it and in what proportions. It names your executor and it names the guardian of your minor children. A Will can be revoked or changed at any time during your lifetime. A change to a Will is called a “Codicil” and requires the same formalities of a Will.

Illinois law sets out several requirements that must be strictly followed in the making of a Will:

3. The Will must be signed by the person who makes it and it must be witnessed and signed by at least two persons in the manner required by law.

Without a Will, the court distributes your property according to the intestacy laws of your state. The State, in effect, drafts a will for you. You have no control over the matter and the laws are very ridged. For example, if you have a surviving spouse and a child at your death, the property that you own (individually and in co-tenancy) will pass as follows:

A Will can change this. With a Will all of your property can be given to your surviving spouse.

Do you really want your child to receive all of his or her inheritance at age 18? If a minor child inherits property, the child's property is held by a guardian under the supervision of the court. However, when the child reaches age 18, the guardian must deliver the property to the child. Many people believe that 18 years of age is too young for any person to obtain control over even a small estate. Many modest estates are converted into sports cars and good times and quickly disappear, much to a child’s later regret. Only a Will creating a testamentary trust can prevent a child from receiving his or her inheritance to early.

Your minor child needs a guardian if you and your spouse should prematurely die. A guardian is a person who will be responsible for raising your child and spending the income and principle from your child's estate on his or her behalf. Unless you name a guardian, a court will determine who will serve as guardian of your minor child. You have no control over the matter. Do you really want a stranger taking care of your child or a relative whom you cannot trust? Remember, your worst decision is usually better than a judges best decision. Without guidance from you, a court must rely on the suggestions of relatives and strangers to determine who will raise your child.

All this can be avoided by having a Will, or other appropriately acknowledged “writing” that names a guardian and successor guardians. It is wise to discuss guardianship with the proposed guardian before making the appointment. You will want to be sure that the person you choose is willing and able to serve, and you may want to discuss particular provisions you want to make for your child’s future. Particularly if you are a single parent, there are many issues that must be discussed.

Only a close and trusted relative or friend is ordinarily appointed guardian, preferably one who would raise your child as you would. Under the law, a guardian must be at least 18 years of age. Illinois law says that any person who is not of unsound mind, is not an adjudged disabled person (a person who has had a guardian or conservator appointed for him), and has not been convicted of a crime rendering him infamous may be appointed a guardian. The Court must also find that the proposed guardian is “capable of providing an active and suitable program of guardianship for the minor. . . .”

They may be two different people, or both jobs may be held by the same person. The guardian of the person takes care of your child's physical needs such shelter, clothing, feeding, and education (generally with the child’s own money and the child’s monthly social security payments). The guardian of the property takes care of your child’s property by collecting and investing it, and making sure that it is used for your child's benefit according to the order of the court.

A guardian of the person of your children must be a person (not a bank or trust company) and may live anywhere, either inside or outside of Illinois. A guardian of the property of your children may be either a person or a bank (with trust powers) or a trust company. If it is a person, that person must live in Illinois. If it is a bank or trust company, it must be authorized to do business in Illinois or must be located in a state that allows Illinois banks and trust companies to handle guardianships in that state.

A “disabled person” is a person 18 years of age or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate; or (b) is mentally ill or developmentally disabled and who because of his mental illness or developmental disability is not fully able to manage his person or estate; or (c) because of gambling, illness, debauchery, or excessive use of intoxicants or drugs so spends or wastes his estate as to expose himself or his family to want or suffering.

All guardians must be bonded, and the cost of the bond is paid out of the child’s property. When a close and trusted relative is appointed guardian in a Will, however, I generally recommend following the rule that if you trust that person enough to entrust your children to him, you trust him enough to waive the surety on his guardian’s bond. This can be done only by Will, and it is a decision that you will have to make if you have or expect to have minor children. Waiver of surety on the guardian’s bond will result in a saving to the child’s estate. This must be weighed against the danger of the guardian’s embezzling the child’s money. No bank’s bond is ever waived, but since a bank is required to have a bond in order to act as a guardian, the bank’s bond costs the child nothing other than the guardian’s annual fee. All guardians are entitled to reasonable fees for their work as guardians. Generally, however, close relatives of the child will take no guardian’s fee or will charge only for their expenses.

The executor is the person or company who you appoint in your will to be the personal representative of your estate. An executor will pay your debts and taxes, handle the administration of your estate, and deliver the property in your estate to your beneficiaries. (Most people name their spouse, their adult children, a relative, a close friend, or corporate trustee).

If you leave no Will at your death, the court will appoint an administrator to handle the administration and settlement of your estate. You have nothing to say in the matter. This job is left to your closest relatives and the court. Only an Illinois resident may be appointed administrator of an estate. An administrator has to be bonded, and the cost of the bond must be paid from your estate. Illinois law sets out the persons who have preference in naming themselves or in naming others to serve as administrator. The order of preference is:

On the other hand, if you leave a Will at your death, you can name an executor. Illinois law says that any person who is at least 18 years of age, a resident of the United States, is not of unsound mind, is not an adjudged disabled person (a person who has had a guardian or conservator appointed for him) and has not been convicted of a crime rendering him infamous, may be appointed an executor. You may name a trusted relative or friend as executor. You may also name a bank (with trust powers) or a trust company as executor. An individual named as executor may live anywhere, either inside or outside Illinois.

Surety on the bond of an Illinois resident who is appointed an executor may be waived. Surety on the bond of a person who is not a resident of Illinois and who is appointed an executor may not be waived, in the discretion of the Court. The bond of a bank or trust company appointed as executor is never waived. Waiver of the bond on any executor who is an Illinois resident will result in a saving to the estate. This must be weighed against the danger of the executor embezzling the property of the estate. I generally follow the rule that if you trust the individual enough to appoint him, you trust him enough to waive the surety on the executor’s bond; however, this is a decision that you will have to make if you name a person as executor of your Will. All executors are entitled to be paid reasonable fees for their work as executors. Generally, however, close relatives of the deceased will take no executor’s fee or will charge only for their expenses.

A will may allow your executor to perform certain acts without securing court permission to do them. In order to save time, money, and taxes, to simplify the settlement of an estate, and to give an executor flexibility settling an estate, I generally recommend that a Will grant to an executor several powers or directions to perform some acts without first securing court permission to do so. Some of these are listed below with the reason or reasons for each given after each one.

· To pay all death taxes out of your estate without charging those taxes against your beneficiaries. While this is not advisable in all cases, this power is recommended in the case of most modest sized estates. Its purpose is to avoid the need to ask Will beneficiaries to pay Illinois inheritance taxes before they receive their inheritances. It also simplifies the settlement of an estate.

· To sell, lease, and mortgage property and to borrow money. The sale, lease, and mortgage of estate property through court proceedings is time-consuming and expensive. Giving an executor authority to do these things will save both time and money. Many estates are cash-poor, and cash is frequently required in order to pay taxes and other expenses. Authority to borrow money is a very convenient power for an executor to have.

· To settle claims. Estates frequently have claims against others or have claims placed against them. If authority is given to an executor to settle claims, this can prevent lawsuits from being filed and can help an executor to settle lawsuits both before and after they have been filed in court.

· To exercise tax elections and options. Just as an individual has certain choices that he can make on his tax returns, an executor has alternatives available to him on a decedent’s tax return and on an estate’s tax returns. This power enables an executor to make those choices in order to save taxes for the estate and the estate’s beneficiaries.

· To distribute your property in cash (as the proceeds of sale after your property has been sold) or in kind (without selling your property) to your beneficiary or beneficiaries. If an executor is given authority to sell (and to deliver the cash to the beneficiaries) or not to sell estate property (and deliver property to the beneficiaries) as he sees fit, then the executor is granted the greatest amount of flexibility possible. This flexibility generally is a benefit to the estate and its beneficiaries.

· To carry on any unincorporated business that you own at your death and to excuse the filing of reports regarding the business in court. If you own an unincorporated business at your death, it must be wound up by your executor as soon as possible unless the court grants permission to your executor to continue the business. If the court grants this permission, then your executor must file periodic reports of the income and expenses of the business with the court. This power saves the need to do all of these things. This power also keeps your business affairs as confidential as possible and saves time and money for your estate.

· To execute documents such as deeds. This power is given in conjunction with the power to sell, lease, and mortgage described at paragraph 8b above. Its purpose is also to save time and money for the estate.

· To allow your executor to serve in another state outside Illinois or to allow your executor to appoint an executor to settle your estate in another state outside Illinois if that is necessary. Because we have a mobile population, there are many Illinois residents who have vacation homes and property in other states. When these properties are purchased, little thought may be given to the complications that will arise when the owner dies. This paragraph is designed to aid your executor to settle your estate no matter in which state or states your property is located.