Illinois has many rules about the formalities of executing a will. They may seem simple and straightforward, but complicated issues can arise, and they are better dealt with by you now, than dealt with by your loved ones later. Here are some of the issues relating to the signing and witnessing of a will in Illinois:
1. Signing the Will.
The will itself must be in writing, and be signed by the testator (the one whose will is being executed). At the time the will is signed, the testator needs to be at least 18 years old, and of sound mind and memory.
2. Witnessing the Will—How to Do It.
At least 2 credible witnesses sign or “attest” to the will. The witnesses sign in the presence of the testator, and generally in each other’s presence as well. Like the testator, the witnesses also should be of sound mind at the time they are witnessing the will.
3. Witnessing the Will—Who My Do It.
In addition to being credible, the two witnesses should not have any financial interest in the will, which rules out beneficiaries and executors as witnesses. Beneficiaries are people who are included in the will to receive some money or property. Because they have a direct stake in the will, they should not sign as one of the two required witnesses. Likewise, executors are considered to have an interest in the will, and should not serve as one of the required witness to it. Executors are people or companies (such as a bank or law firm) who will perform the tasks necessary to fulfill the terms of the will. They will gather all the property that is part of the testator’s estate, and pay money that is due to any of the testator’s creditors. They will then distribute the property according to the testator’s wishes that are expressed in the will. Executors are paid a fee for doing this work, so people who are named as executors have a financial interest in the will and should not be witnesses.
4. “Extra” Witnesses Who Have an Interest.
An executor or beneficiary sometimes signs as a witness to a will if they would be the third witness, since only two are required. The mere fact that they have signed the will also, does not necessarily affect the validity of the will or what they may receive by the will. If, however, one of the interested parties needs to testify later about the validity of the will as one of two witnesses, then they will lose what the will provides for them. In the case of the beneficiary, he or she may receive what would have been given according to Illinois law when there is no will at all. So even though this may be allowed, it is better to avoid having a beneficiary or executor witness the will at all.
5. Once Done, It Must Be Formally Undone
After the formalities of execution of a will, that will remains in effect unless it is formally revoked. Even if the circumstances of the testator’s life change in ways that impact the terms of the will, it does not become invalid. The law regarding formal revocation of wills is attempting to avoid a problem later, where there appears to be two valid wills. So the best method to revoke a will, is by properly executing a new will, which states that the prior will is revoked. There are other formalities which may revoke a will as well.