Will your Will Stand the Test of Time?

Christina Mermigas, attorney in Chuhak & Tecson, P.C.’s Estate & Trust Administration & Litigation and Estate Planning & Asset Protection practice groups, provides recommendations for your Will to stand the test of time in acknowledgement of August Make-a-Will Month.

One of the primary documents in your estate plan should be your Last Will and Testament. Your Will controls the disposition upon death of any asset held in your individual name — not held jointly or in trust or that has a beneficiary designation attached to it.

In Illinois, there are four requirements to create a valid Will. First, the maker of the Will must be at least 18 years of age. The second, and most contested component, is that the maker must be of sound mind and memory. This is what we call testamentary capacity. The testator must have a complete understanding of their property’s extent and nature and comprehend that by signing the Will, they are altering the disposition of that property.

The third requirement is that the Will must be in writing. It can be typed; it can be handwritten; it can even be electronic, but it cannot be holographic and you cannot do a video Will. The fourth and last component of a valid Will requires that the Will must be signed contemporaneously by the maker of the Will and two uninterested witnesses. These witnesses cannot be related to the maker by blood or marriage nor can they be beneficiaries named in the documents.

And that’s it. Those are the four components to a valid Will. It seems straightforward, but there are a few drafting errors that I see from inherited or older documents that should be avoided or corrected.

1) A missing self-proving affidavit. The self-proving affidavit is a notarized affidavit that is signed by the maker and the witnesses that allows the Will to be admitted to probate on its terms. If the Will lacks this affidavit and needs to be admitted to probate, then your loved ones are stuck trying to locate the witnesses so they can provide testimony. The problem? Good luck trying to locate witnesses from 20 years ago or who you do not know. This “prove-up” step wastes time and money and can easily be avoided by having this affidavit attached to your Will.

2) No waiver of bond or surety. In probate, the court can require the executor to obtain a probate bond, a type of insurance policy, before appointment to protect the estate’s assets for the heirs. The Will can specifically waive this requirement saving your family a great deal of time and money from having that unnecessary insurance expense.

3) Not being specific about the powers of your executor. Although these provisions may seem like boilerplate, they are essential provisions. If your Will does not contain or outline those executor powers, then your executor is stuck asking the judge for approval of specific actions like selling real estate, which again is unnecessary attorney fees and expenses.

4) Handwriting modifications to your Will. You cannot simply just cross out or type in a modification to your original Will. The changes to a Will must meet the same four requirements outlined above. To create a valid Will. To be valid, a Will modification requires a separate document to be drafted by an estate planning or elder law attorney.

Please review your Will to ensure that it avoids these pitfalls and it withstands the test of time. Consider contacting one of the experienced estate planning or elder law attorneys at Chuhak & Tecson.

Client alert authored by Christina M. Mermigas, (312 855 4354), principal.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.