Illinois State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Illinois Compiled Statutes
Probate jurisdiction rests with the Circuit Court

Minimum age requirement to:

Distribute property by will: 18 (Section 755-5/4-1)
Which minor gets property: 21

Holographic will NOT recognized (No Section exists)

State taxes:

Estate tax: Equal to federal credit for state death taxes (Section 35-405/1 to 35-405/18)
State gift tax:Inheritance tax: No inheritance tax (Section 35-405/1 to 35-405/18)
- No state gift tax (Section 35-405/1 to 35-405/18)
- Anatomical Gift Act (Section 755-50)
Inheritance tax: No inheritance tax (Section 35-405/1 to 35-405/18)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 755-5/2-1)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - One-half (1/2) of your estate to your surviving spouse, and
  - The other one-half (1/2), split equally among the surviving children or to their children according to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - One-half (1/2) of your estate to your surviving spouse, and
    - The other one-half (1/2), split equally among the surviving children or to their children according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - All of your estate will pass to your spouse
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents and your siblings equally or to the children of your siblings according to their per stirpes share; however if there is only one surviving parent then they take double their share
No spouse, children, or parents:
- One-half (1/2) of your estate to your maternal grandparents or to their children according to their per stirpes share and the other one-half of your estate to your paternal grandparents or to their children according to their per stirpes share. If none, then one-half (1/2) of your estate to your great-maternal grandparents or to their children according to their per stirpes share and the other one-half of your estate to your great-paternal grandparents or to their children according to their per stirpes share. If none, then to your next of kin

Who must be named as a beneficiary in your will:

Surviving spouse (Section 755-5/15-1), andChildren, born or adopted (Section 755-5/4-10)
- Surviving spouse must be given:
  - If there are no children, the must be given one-half (1/2) of your estate; see statute for more details (Section 755-5/2-8)
  - If there are children, then must be given one-third (1/3) of your estate; see statute for more details (Section 755-5/2-8)
Children, born or adopted (Section 755-5/4-10)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced surviving spouse (Section 755-5/4-7)
You get married without changing your will that does not provide for your new spouse:
- Does not revoke the will (Section 755-5/4-7)

Out of state executors: May require a bond even if will expressly states bond is not required (755 Ill. Comp. Stat. Section 5/6-13)

Witnesses:

Minimum number of witnesses required: Two (Section 755-5/4-3)
Are witnesses allowed to be beneficiaries?: Yes; however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void, unless there are two other disinterested witnesses, but witness beneficiary still may be entitled to named shares under state intestate law (Section 755-5/4-3)
Requirements to be a witness, witnesses must:
- Be an adult,
- not be entitled to anything in your will, and
- not be finically responsible for your healthcare

Property ownership (Sections 205-105/4 to 205-105/8 and 765-1005/1 to 1005/4a):

Common law state
Jointly held property is presumed to be held as tenancy in common, unless title expressly and clearly creates a joint tenancy with right of survivorship and not held tenancy in common
Bank account deposits held jointly are payable to any survivor named in the bank account
Tenancy by the entirety is recognized in this state

Other types of wills:

Self-proving wills recognized: Not by statutes; however, self-proving affidavits have been accepted by the Courts (Section 755-5/4-6)
Living will: Illinois Declaration (Section 755-35/1): Requires physician to personally examine you and certify in writing that you are terminally ill, and that death will occur without the use of death-delaying procedures
Durable Power of Attorney for Healthcare (Section 755-45/4-1)
Durable Power of Attorney Act (Section 755-45/2-1)