No one wants to think about death and dying.  But despite our desire to avoid thinking about these topics, we know that the inevitable will one-day happen to each of us.  When it does happen, it will be important that there is a good plan in place to provide for those who will survive us after our death.

That’s where “estate planning” comes in.  The purpose of “estate planning” is to put a plan in place that will increase the long-term security for your family and those important to you.  It is a way to help insure that the goals and dreams that you have for your family will become a reality, and continue when you are no longer personally present to make that reality happen.

But “elder law” involves more than planning for what will happen after a person’s death.  “Elder law” involves preparing a plan that addresses who will make personal and financial decisions for you during your lifetime, in the event that you are unable to do so yourself, in addition to decisions about what will happen to your financial assets after your death through preparation of a will. This “elder law” process can include the creation of such documents as powers of attorney, trusts, and “living wills” that can be effective during your lifetime, in addition to instruments that address what will happen to your assets after your death.  The elder law planning process may also address issues related to long-term care, nursing home care, and Medicaid planning.  In the event that there are minor children or loved ones with disabilities that may survive.

Frequently Asked Questions

What is a will?  A will is a document in which a person (called a “testator” or the “maker” of the will) directs how that person’s property should be distributed at the time of the person’s death.  Each state has different laws about what must be done in order for a will to be legally enforceable at the time of that person’s death.  A will can do other things as well as state how that person’s property should be distributed on that person’s death.

What else can a will do?  There are lots of things that a will can do beyond the bare minimum definition of a will that is set out above.  If you have a child or children under the age of eighteen, you can name a guardian, and a successor guardian, for those children.  You can give the guardian directions about what actions you would like the guardian to take regarding those children, their care, and their finances.  One way that you can do this is by establishing a “trust” for minor children in your will, to become effective at the time of your death.  In a will, you can provide for others besides family members: friends, charities, educational institutions, even former boyfriends (or girlfriends), all can be made “beneficiaries” of your will, to take property under your will at the time of your death.

In a will you can also state who you would want to become the “executor” of the will on your death.  The executor is the person who does those things that you have said in your will should happen as a result of your death.

What happens if a person dies without a will?  In Illinois, if a person dies without a valid will in place, the property passes to the nearest relatives of that person according to the schedule of “intestate succession” (sorry to use a complicated legal term, but it’s probably necessary here) that is set out in the Illinois Probate Act.  In this law, the legislature has tried to “guess” where a person would want their property to go, if there is no will.  So, for example, if a person dies and leaves a spouse surviving, but no children (or grandchildren, or greatgrandchildren …), all of that person’s property (after the payment of debts that might be legally required) would go to the surviving spouse. If a person dies and leaves a surviving spouse and two surviving children, the surviving spouse would take half of the estate, and the two children would each receive a fourth of the estate.  The statute takes the possibilities for succession far down the line of survivors, to address every circumstance that might arise.

If a person is unhappy with their spouse, can they “disinherit” the spouse in their will?  A will may still be valid in Illinois, even if it does not make any gift to a spouse in the will.  However, in Illinois, a spouse can “renounce” their predeceasing spouse’s will for any reason.  If a spouse renounces the will, the surviving spouse can take one-half of the estate available for distribution if the deceased person no surviving descendants, and one-third of the estate if there are surviving descendants.

Can I change my mind about my will after I have made it?  Generally, the answer is “yes”; as long as the person still has the legal capacity to make a will, and the will follows all of the legal formalities required to make a will valid, a person can change their mind, and make a new will, or amend their old will, at any time before their death.

What does it take for a will to be valid in Illinois? In Illinois, to be valid, a will must be in writing, signed by the person whose will it is, and that signature must be witnessed by at least two persons who the law considers to be “disinterested” in your will and estate.

It doesn’t take much for a will to be valid in Illinois; sounds like something I can do myself without an attorney?  The process is probably more complicated than it sounds, at least to do it right.  If you try to do it yourself, and make a mistake, the mistake may not be discovered until after your death.  Then, it likely will be impossible to correct that mistake.  The mistake could make your will meaningless, and require things to be done that you never intended.