The process of drafting a will is deeply personal. People may spend weeks reflecting on how they want to affect the world after they die and what they want to do for the people they love. A will document, in and of itself, often seems like a technical detail compared to the terms that someone wants to include in the document.
However, the most thoughtful estate plan in the world will be useless if someone fails to put those terms into an enforceable document. Illinois has specific requirements for wills, and those who fail to comply with state rules could have their will disregarded during probate proceedings. These are the two primary requirements that are necessary for someone to leave written instructions about their estates that will hold up in probate court.
The testator must be an adult of sound mind
In Illinois, as elsewhere, legal adults have the right to control the descent of their personal property after they die. There are state laws guiding the distribution of their property should they die without a will, but they have the right to control what happens to their assets. Once someone is 18 years of age, an estate plan will be an important tool for their protection as they may not have anyone to handle their affairs in an emergency otherwise.
Having the testamentary capacity to create legally binding documents is also important. Those with disabling conditions that affect their capacity may not be able to create testamentary documents. Older adults experiencing cognitive decline, those under the influence of drugs or alcohol and anyone else with diminished capacity may not be able to create legally-binding estate planning documents.
The testator must sign in front of witnesses
One adult cannot create a valid and enforceable will all on their own. There is reason to worry about fraud and undue influence, among other issues that could compromise the validity of someone’s testamentary documents.
At the very least, the testator will need to sign the documents in front of two other legal adults who will serve as witnesses. People often have a lawyer present for such signings and may request notarization as well.
Mistakes when creating a will, such as failing to have witnesses present at the signing, might eventually lead to the Illinois probate courts invalidating the document and refusing to enforce it when someone dies.
Learning about the requirements for wills and other estate planning documents will benefit those thinking about their legacy and future medical needs.