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5 Steps for Making a Living Will in Illinois

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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!

What Happens When Someone Dies Without a Will?

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Intestate is the term used by the court system to identify a person who has died without a valid will. The scenario is one in which the individual has “died intestate”. The living family members will want to know who will inherit the assets and how the estate will be distributed.

Inestate Succession

Last-Will-and-Testament-Form-with-Gavel

Here’s how the assets are divided when a loved one dies without a will.

In intestate succession, the state law allows for certain classes of family members to inherit the decedent’s estate. Each state has its own set of laws for intestate succession, which offers an organized and systematic way to distribute property.

The class of heirs delineates who will receive what portion of the decedent’s estate. For example, in the case where a decedent leaves behind a spouse and four children, the estate will be divvied up, with half of the estate going to the spouse and the other half distributed to the children. If the decedent had no spouse but children only, the estate goes directly to the children. If the decedent leaves behind no spouse and no children, more distant relatives receive the share.

Five classes of heirs exist when evaluating an intestate case:

  • Parents
  • Surviving spouse of the decedent
  • Descendants, including children and grandchildren
  • Siblings, nieces, nephews and other descendants of the decedent’s parents
  • Aunts and uncles (the descendants of grandparents)

When none of the above survive at the time of the intestate succession, then the estate escheats to the state or county. Such situations where the state receives the entire estate rarely occur, as state laws are designed to ensure that even the most remote relatives receive the inheritance. Unmarried partners, friends and charitable organizations do not receive a decedent’s assets under intestate succession laws.

It is important to note that certain property cannot by law be passed by a will. These assets include the following:

  • Property in a living trust
  • Assets in a 401(k), IRA or retirement plan with a named beneficiary
  • Stocks, real estate or vehicles held in a transfer on death (TOD) account or deed/title
  • Proceeds from life insurance policies
  • Assets held in joint tenancy, including bank accounts and real estate

These types of property may only be passed on with documentation that establishes co-ownership or a beneficiary.

Those Who Will Not Receive Assets

All states have established laws that prevent a relative who behaved badly toward the deceased individual from inheriting any assets. For example, kindred who committed a crime against the person who died, causing the individual’s death, will almost never receive anything from the decedent’s estate. Parents who failed to pay child support, committed crimes against the child or abandoned the child do not profit from the deceased child’s assets.

Children

Children can have varying descriptors in the eyes of the courts. Foster children, for instance, do not typically inherit an estate from foster parents. Stepchildren who are not legally adopted by the deceased usually do not receive a portion of the inheritance. Legally adopted children have the right, according to state laws, to receive the estate just as would biological children.

However, intestate succession laws do not give children adopted by an unrelated family the legal right to inherit the property of the biological parents nor the right for biological parents to inherit from the deceased child. In adoption cases where inheritance is in question, the state laws cut the legal tie between birth parents and their children.

Spouses

State laws give careful consideration about who qualifies as a spouse. Normally, a spouse is one who is legally married to the decedent at the time of death. Questions may arise as to the legal status of marriage, such as in the following scenarios:

  • Pending divorces and legal separation blurry the line between who qualifies as a spouse and who does not in the eyes of the law. If divorce proceedings are begun before an individual dies or if the couple is separated prior to one spouse dying, a judge will consider whether or not the surviving member is deemed a spouse.
  • Differing states may or may not recognize common-law marriages. Some states do allow common-law marriages, in which a couple intends to get married, cohabits and presents themselves as would a married a couple.

Other Relatives

Illinois has certain additional laws that effect intestate succession. “Half” relatives, such as a half-brother or half-sister, are entitled to a deceased parent’s inheritance just as would “whole” relatives. Relatives who are not citizens of the United States are entitled to an inheritance under Illinois intestate succession laws.

Those who abuse, neglect, or exploit an elderly individual will not receive any portion of that person’s estate upon his or her death. Illinois laws also stipulate a survivorship time period of 120 hours. This means that in order to inherit, the individual must outlive the decedent by at least 120 hours. If two siblings are involved in a car accident, for example, and one sibling dies a few hours after the other, the survivorship law does not allow for the inheritance of property.

Estate Planning Attorneys

When you are in doubt about a family member’s transference of property when no will is found, consult the most trusted estate planning lawyers in Oak Lawn IL, Berry K. Tucker & Associates, Ltd. Our lawyers are experienced in helping clients develop wills and trusts. Our estate attorneys not only assist you with creating and modifying a will, but also with contesting wills.

The Berry K. Tucker & Associates Ltd. team of lawyers also specialize in trusts as a part of estate planning. Clients will want to provide for the future of their family with the development of a trust. Examples of trusts on which we focus include charitable trusts, dynasty trusts, life insurance trusts, family trusts, living trusts and special needs trusts, among others.

Plan for your family’s future by consulting the skilled will and trust attorneys at Berry K. Tucker & Associates, Ltd. Our lawyers are available for an immediate consultation at (708) 425-9530.

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