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Different Types of Wills

Posted on: November 18, 2023 by Berry K. Tucker

Wills offer peace of mind. These important legal documents stipulate how your assets will be distributed once you have passed. Without a will, the state of Illinois, via the Illinois Probate Act, determines how your assets will be handled. The best time to create a will is now, whether or not you are in peak health, to ensure your loved ones’ futures are secure.

The type of will you create can fall into any of the following four variations and be legally recognized in the state of Illinois.

Here are the Different Types of WillsLast-Will-and-Testament-Form-with-Gavel

Simple Will

Simple wills are just that, simple to create, require minimum effort to draft and address most assets. This type of will is especially ideal for those who do not own a major estate that is subject to estate taxes.

A simple will manages your last desires, including

  • Distributing property once you are deceased
  • Designating a guardian for your minor children
  • Appointing an individual to handle your minor children’s financial affairs and
  • Naming a person to execute your estate

A simple will normally take care of the needs of people under the age of 50 who have a small estate (your property). If you own significant assets or property or will owe estate taxes upon your death, a simple will may not be for you. Plus, if you intend to distribute your wealth to your children and, when they die, to your grandchildren, you will require a more complex will.

You, as the testator (the person writing the will), can write a simple will without the assistance of a will and trust attorney. Once the will is written, at least two witnesses (according to Illinois law) must sign the form in order for it to be legally binding; these witnesses must not be beneficiaries. Individuals may create simple wills via self-help books, online forms, and software designed to develop these legal documents.

Testamentary Trust Wills

When you designate a portion of your property to a trust, you require a testamentary trust will. This type will allow your property to be your beneficiary, but a designated trustee manages the details of how and when your assets are dispersed to the trust beneficiary.

For instance, you designate your oldest child as your beneficiary but stipulate that your brother acts as the trustee. The trustee manages the funds, doling out a portion of your assets regularly over a period of time, rather than delivering the funds in one lump sum to your oldest child.

If your designated trustee declines the role, the court may assign a trustee; alternately, another trusted individual may volunteer to assume the responsibility.

Joint Will

A joint will is drafted so that all your assets go to your living spouse. Essentially, couples leave their property to each other. A joint will cannot be revised without the other spouse’s consent, meaning it is irrevocable once one spouse has passed.

Given the irrevocable nature of the joint will, attorneys advise against drafting such a document. The surviving spouse may live for several more years and eventually may face life circumstances that warrant a change in the terms of the joint will. For example, the living spouse may wish to allocate a portion of the assets to a grandchild for his college expenses; or, the survivor may desire to downsize and move into a smaller home. Unfortunately, alterations to the joint will cannot legally be made, since receiving approval from the deceased spouse is impossible.

Living Will

A living will involves your last wishes related to your medical care if you become too incapacitated to communicate. For instance, you may draft a living will that relays your wish to not be hooked up to feeding tubes or be resuscitated in the event you become unconscious.

A living will serves as your healthcare directive. In the document, you appoint an agent to carry out your decisions as outlined in the living will. The appointed healthcare agent cannot be the testator’s healthcare provider. According to Illinois law, two witnesses must sign the living will; these witnesses must be over 18 years old, should not be accountable for your healthcare costs and should not be legally permitted to your estate. As the testator, you are responsible for notifying your medical provider of the existence of the living will.

Unrecognized Wills

In the state of Illinois, two types of wills lack legal authority. The first of the two is the holographic will, which is handwritten by the testator and fails to bear the signatures of witnesses. Unless the will was written in another state that does not require witness signatures, the holographic will has no legal power in Illinois.

The second type of will that is unrecognized in Illinois is the nuncupative will. Such a will is spoken to witnesses, including in such scenarios as life and death emergencies, soldiers in war or persons in danger of facing imminent death, and by people who cannot immediately draft a written will. Illinois does not accept nuncupative wills under any condition, although some jurisdictions do.

Wills ensure that your final wishes are carried out as you intend. In order for a will to be accepted in a court of law, the document must be legally binding. One way to ensure your will is permissible in court is to create the form with the help of a will and trust attorney from the reputable law firm of Berry K. Tucker & Associates, Ltd.

Work with Berry K. Tucker & Associates, Ltd.Berry-K.-Tucker-Lawyer-Oak-Lawn-IL

The attorneys at Berry K. Tucker & Associates, Ltd. stay current on changing Illinois laws, ensuring your legal documents are properly executed and your family’s financial future is secure. Our lawyers take time to understand your unique financial situation and advise you appropriately. We are experienced in all forms of estate planning, from simple wills to trusts, like irrevocable trusts, charitable trusts, and living trusts, among many others.

Our exceptionally skilled estate planning lawyers from Berry K. Tucker & Associates, Ltd. serve the greater Oak Lawn, IL community with dedication and unparalleled expertise. Consultations are available for those interested in meeting with one of our will and trust attorneys.

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To request an initial consultation with Berry K. Tucker & Associates, Ltd., give us a call at (708) 425-9530 or fill out a contact form. We look forward to working with you!

What is the Right Age to Write a Will?

Posted on: January 20, 2022 by Berry K. Tucker

In Illinois, anyone age 18 and over has the legal right and privilege to write a will. Deciding when to make a will is a personal decision. Accidents can happen, and being proactive about ensuring the security of one’s family, pets and assets is a practical and sensible solution.

What are the benefits of making a will?

Couple-Meeting-Estate-Planning-Attorney

Intestacy laws go into effect when someone dies without a will. Illinois intestacy laws give the state the right to distribute the decedent’s (the individual who has died) property to his or her closest relatives. If no distant relatives are located, the state takes the property.

Especially if an Illinois resident owns property, cash and real estate and would like to see these assets distributed to a spouse, children or charitable organization, then writing a will as soon as it is legally binding in the state is practicable and even recommended.

Individuals with children should also consider writing a will as soon as possible to protect the children’s future. In Illinois, the testator (person writing the will) has the right to appoint a person to act as a guardian of his or her children and may outline the guardian’s responsibilities.

Those aged 18 and over who own pets should strongly consider writing a will. Illinois law allows what is known as a “pet trust,” which provides care to animals after the owner has passed away. Pet owners will thereby ensure the well-being of their animals after their death.

What are the requirements for writing a will?

Will-Trust-Attorneys

Besides being of legal age, a testator in Illinois must follow basic requirements. The individual must possess mental competence in order for the will to be valid. Mental competence may be displayed as understanding one is writing a will and being familiar with one’s property and descendants.

The two witnesses required to sign the will acknowledge the testator’s mental competence. Dissatisfied heirs might challenge the testator’s mental competence at some point in the future. Such cases may be preemptively handled by including a doctor’s assessment during the creation of the will.

Witnesses are key factors when it comes to validating the will. The two reliable witnesses that are required to sign the will provide their signatures while in the presence of each other. The witnesses ensure that the testator is not under duress at the time of executing the will.

Beneficiaries are not permitted to serve as witnesses. Illinois enforces such laws to prevent a conflict of interest with people standing to financially benefit from the death of the testator. If a beneficiary serves as a witness, she may lose part or all of the gift stated in the will.

Can a will be revised?

An Illinois testator has the right to revise a will at any time. Changes to the will are valid if the testator follows the same procedures that applied to writing it. Alterations to the will must be made by the testator or by someone who has the testator’s consent.

Can a will be revoked?

Wills-&-Trust-Attorney-Oak-Lawn-IL

A person who has written a will and testament years ago may have the desire to revoke it. The revocation of an Illinois will can be done in any of several ways. The testator has the option to write a subsequent will and include a declaration revoking the earlier will.

The testator also has the choice to tear up the will, burn it or otherwise cancel the will while in another person’s presence. Furthermore, a witness may destroy the will with the testator’s consent or under the testator’s specific direction.

What makes a will valid in Illinois?

A will must be in writing to be recognized as legally valid in the state of Illinois. Holographic wills (those that are handwritten without the presence of witnesses) are not accepted in Illinois due to the lack of the required witnesses.

Similarly, video wills are not considered valid in Illinois. However, a testator can create a video will in addition to a written one to prove he was of sound mind and not unduly influenced while signing the will. Will-signing ceremonies simply involve reading the will aloud on camera.

The addition of a video will can be useful to show the testator signing the will in the presence of two credible witnesses. The video will is a visual record of the testator’s sound decisions and shows that the will was executed in a free and independent manner.

Is a lawyer necessary to write a will?

Illinois gives testators the right to independently make a will with the help of software designed to create valid wills or through online will programs. Such tools allow testators to create wills at any legal age. However, consulting a wills and trusts attorney is strongly advised under certain circumstances.

A testator who has fears that his will might be contested for any reason is urged to speak with a lawyer. An experienced estate planning attorney has the ability to skillfully structure an estate plan, for example, making it less worthwhile for a dissatisfied relative to sue.

Work with an Estate Planning AttorneyBerry-K.-Tucker-Lawyer-Oak-Lawn-IL

Writing a will sooner rather than later is recommended. Remember that wills can be updated at any point in the future, and revisions are especially important when financial situations change. When you are considering writing or changing a will, consult Berry K. Tucker & Associates, Ltd.

Our experienced estate planning attorneys ensure your will is legally valid, free of errors and appropriate for your situation. The lawyers at Berry K. Tucker & Associates, Ltd. will help you with choosing between a living will or a simple will. We’ll provide expert guidance on all aspects of trusts, too.

Your family’s future security is a priority when you work with Berry K. Tucker & Associates, Ltd. The will and trust attorneys at our Oak Lawn-based firm will help you navigate the complex path of will creation and estate planning, no matter at what age you write or update your will.

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Give us a call at 708-425-9530 to schedule a free consultation with our estate planning attorneys.

5 Steps for Making a Living Will in Illinois

Posted on: December 21, 2018 by Berry K. Tucker

Feeding tubes? CPR? Before you are on your deathbed, you are likely to have strong preferences about how your end-of-life care should be handled. In the event you become incapacitated and no longer have the capability to express wishes for your medical care, a living will becomes vital.

A living will is a legal document that clearly spells out how your physician should conduct your end-of-life medical care. Also known as an advance directive or directive to physicians, a living will is invaluable in giving the incapacitated individual control over his or her final days of healthcare.

The Importance of Having a Living WillLast-Will-and-Testament-Form-with-Gavel

Without a living will, doctors and family members of the person in a terminal condition have no way of knowing his or her preferences surrounding end-of-life medical care. Given the short-lived but powerful directives of the living will, developing a living will while you are in good health is critical.

Each state in the US has differing laws surrounding the terms of a living will. In Illinois, the definition of a living will is provided in the Illinois Living Will Act. The Act stipulates that the living will may indicate whether or not the incapacitated person wishes to have his or her death delayed by medical procedures.

Any individual over the age of 18 and who takes up residence in Illinois may execute a living will. When a living will is signed into effect in another state, Illinois law recognizes the living will.

5 Steps to Create a Living Will

1. Discuss Your Wishes with Your Physician

The first step in creating a living will is to discuss with your physician whether or not he or she will comply with your medical instructions in the event you become incapacitated.

2. Record Your Decisions

Write down your decisions regarding whether or not to receive death-delaying medical procedures. A lawyer may be hired to prepare the living will. Alternately, you may elect to utilize living will software that complies with Illinois’ laws.

Aside from being cost-effective, using a software to create a legally binding living will allows you to update it at any time. Ensure the living will is official. Medical professionals and hospitals are more likely to enforce an official living will rather than an unofficial document.

3. Have Witnesses Sign the Will

Witnesses give legal credibility to the living will. You will first need to sign the living will in front of two witnesses who are at least 18 years of age. Once you provide your signature, the two witnesses must sign the living will. Carefully choose your witnesses. Anyone responsible for your healthcare is not permitted to sign as a witness. In addition, any person who stands to inherit property is not a credible witness in the eyes of the law and cannot legally serve as a witness.

Once signed, the living will takes effect. Alternately, you may elect to have the living will enforced when you are deemed unable to relay decisions about death-delaying treatment. For as long as possible, physicians will rely on your ability to communicate, as opposed to the living will, even if the living will takes effect immediately.

4. Distributed the Signed or Notarized Living Will

Distribute the signed or notarized living will to your medical team, estate planning lawyer, and/or family. Healthcare professionals and institutions you may wish to send the living will to include your doctor and the hospital or healthcare facility.

The hospital will store the living will in your medical file. Your lawyer should also receive a copy. Family members should be notified, as well any other trusted individuals who will carry out your last medical requests. Noting who receives a copy of your living will is important in the event you decide to update or cancel the document.

5. Assign an Agent or Healthcare Professional to the Will

Assign an agent or healthcare proxy to carry out your end-of-life medical requests. This individual works in conjunction with a durable power of attorney (DPOA). Living wills can be combined with a DPOA document in a few states.

Your agent can be someone you trust, like a spouse, family member or close friend. An ideal choice is someone who will not give way under pressure if arguments arise about your care. Under Illinois law, your agent cannot be your attending physician or healthcare provider. When you are no longer able to communicate decisions about your end-of-life care, your agent steps in, putting in motion the wishes outlined in your living will.

How to Cancel a Living Will

Canceling your living will is relatively simple. Write out a note that specifies the cancelation. This signed document must then be sent to anyone who received a copy of the original living will. You may also verbally cancel an existing living will by telling a witness aged 18 or over about your wish to cancel it.

Subsequently, the witness should provide a written document confirming the cancelation. Most importantly, your doctor should receive notice about the cancelation. The physician will add the cancelation note into your medical file, and attending medical professionals will accordingly disregard the canceled living will.

When to Create a Living Will

The best time to create a living will is now. When you are able to communicate your decisions about end-of-life care, take steps to write it down with the help of Oak Lawn’s most respected will and trust attorneys, Berry K. Tucker & Associates, Ltd. No matter how overwhelming the thought of creating a living will can be, the established attorneys at Berry K. Tucker & Associates, Ltd. will simplify the process.

Skilled lawyers from the Berry K. Tucker & Associates, Ltd. team stay updated on the changing laws in Illinois. With unmatched expertise, the attorneys take the time to fully understand your unique situation and help develop the most optimal legal documents to carry out your stated wishes. The legal team at Berry K. Tucker & Associates, Ltd. sees to it that your living will is created in accordance with Illinois law. Appropriate legal documentation is necessary for proper execution.

Contact Us

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Residents of the Oak Lawn, Illinois, and surrounding communities know they can rely on the knowledgeable will and trust attorneys at Berry K. Tucker & Associates, Ltd. To schedule an initial consultation with one of our attorneys, contact us directly at (708) 425-9530 or fill out a form and we will get back to you shortly!

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