Wills

The Difference Between a Will and a Living Will

It is easy to get confused about the difference between a Will and Living Will. For more detailed information on Living Wills, see the section of this Chapter titled "Health Care Decisions."

A "Living Will" is a document in which you state your wishes about receiving or not receiving life supporting medical treatment while you are alive.

A "Will" contains your instructions about what is to be done with your property after you die.

If You Die Without a Will

In Illinois, if you die without writing a will, a law known as the Probate Act determines who gets the property you leave after you die. This situation is known as intestate distribution. The following describes the legal rules of intestate distribution for some common situations. You should get the advice of a lawyer, and not rely on this summary alone, to make your decision about whether you need to write a will.

• If you are survived by your spouse but have no children, grandchildren or great-grandchildren, your widow or widower will get your entire estate.
• If you are survived by a spouse and have children, grandchildren or great-grandchildren, your spouse will get half of your estate. The remaining half will be divided among your children equally. If any of your children die before you do, that child's children, if any, will divide the share your child would have received if he or she had not died before you.
• If you do not leave a surviving spouse, your entire estate will go to your children in equal shares. If any of your children die before you do, that child's children, if any, will equally divide the share your child would have received if he or she had not died before you.
• If you die without leaving a spouse or children, your estate will be divided among your parents, brothers, sisters and their descendants according to the detailed rules in the Probate Act.
• If you die without a will and you have no known relatives, your estate will incur the expense of tracking down any distant relative or go to the county or to the state, depending on a variety of factors as set forth in the Illinois statutes.

Writing a Will

A will is a formal legal document in which you specify the persons or entities to whom you want to give your property after you die. It also makes arrangements for how any debts you owe at your death are to be paid. If you have a child or children under age eighteen, you can name the person you want to be your children’s guardian if you die before they become adults. In your will, you also choose the person, called your executor, who you want to take the necessary legal steps to carry out the instructions you put in your will.

In your will, you can leave your property to anyone you choose, including charities or even perfect strangers. In your will you can create a trust to manage your property for your beneficiaries. There is no law that says you must leave your property to your family, with one important exception. If you are married, you cannot simply write a will which leaves nothing to your husband or wife. In Illinois, your husband or wife can renounce your will for any reason, whether you leave them everything or nothing.

If your spouse renounces your will, your spouse will get one-half of your estate if you have no children or other descendants, and one-third if you do. Moreover, pursuant to the Widow's Award, regardless of your will, your spouse has a statutory right to an award of $10,000 from your estate. Whatever property remains in your estate after your spouse takes his or her share will be distributed to your other beneficiaries as you originally directed in your will. However, due to the fact that your spouse may now take a different percentage of your share than you intended, the other beneficiaries' share may increase or decrease proportionately.

The Probate Act also sets the requirements for writing a will. Your will must be in writing, and you must sign it. Two people who get nothing from your will must witness your signature. It is not a good idea to write your will yourself. Get professional legal assistance. In general, hiring a lawyer to draft your will is not expensive. If you try to do it yourself and make a mistake, your will could become meaningless and not accomplish what you intended.

Changing Your Will

If you want to change your will, you must create a separate document called a codicil. You (your lawyer) must write the codicil with the same formality as your will. You must sign it in the presence of two witnesses who get nothing from your will. If the changes you want are lengthy or significant, it may be a better idea to write an entirely new will. Consult an attorney for advice on which option is best for you.

Revoking Your Will

Once written, you can choose to revoke your will. This means to make it invalid, or to negate or cancel it. You can do this in several ways:

• You may burn, cancel, tear or destroy it yourself. Someone else may do this if you direct them to do so;
• You may write a new will stating that your earlier will is revoked. If your new will does not state this, any part of your new will which is different from the earlier one will control;
• You may write a statement saying that your will is revoked. You must sign it in the presence of two witnesses, just like the original will.

Article Source: http://freelegalinformation.info

Published by: Illinois Legal Aid