Rules for Witnessing a Will
Illinois has very specific rules for how wills must be prepared. In Illinois, a will must be: (1) in writing; (2) signed by the person making out their will to distribute their estate after their death, called the "testator"; and (3) signed by two witnesses while in the presence (generally the same room) of the testator. Illinois law is also very specific on who can sign as a witness to a will.
A witness must be "competent," meaning they must be of sound mind at the time they are signing the will as a witness. Each witness must also be who they say they are, to prevent fraud. Finally, neither of the two witnesses signing the will should be financially interested in the will. They should be not be a "beneficiary" or "executor".
A "beneficiary" is someone who will receive property or money under the will. If a beneficiary signs the will as one of the two required witnesses, he or she will lose either all or part of their gift under the will. However, the beneficiary may still receive his or her gift if they are what is called a "supernumerary" witness. A supernumerary witness is an extra witness--so if three people sign the will as witnesses, and one of them is a beneficiary but the other two are not, the beneficiary can still receive his or her gift under the will. Nevertheless, there is no benefit whatsoever to having a beneficiary sign the will as a witness, and it could cause problems down the road, so it is best to simply never have a beneficiary sign the will as a witness.
The "executor" is the person or company, such as a Bank or law firm, who carries out the collection and distribution of the deceased’s estate, and pays out any of the deceased’s outstanding debts. Under Illinois law, the executor receives a fee for these services to the estate. Unfortunately, if the executor is a person, he or she may not receive a fee for their services to the estate if they signed the will as a witness, unless they are a "supernumerary" witness. As with a beneficiary, however, there is no benefit to having the executor who is a person sign the will as a witness, so it is best if they do not do so. If the executor is a company though, employees of the company may sign as witnesses with no penalties provided that they are not also beneficiaries under the will. For example, if the Bank is named as your executor, and your daughter works at the Bank, she should not sign the will as a witness, but her co-workers can.
These rules regarding beneficiaries and executors do not apply to either your lawyer or your creditors. Your lawyer will still receive legal fees for his or her services to your estate, and your creditors will still get paid any debts that you still owe them upon your death.
The best persons to sign as witnesses to your will are usually your lawyer’s employees. Such persons are likely to be present when you sign your will, so you do not need to make any extra trips. If your lawyer, accountant, or bank or trust company is going to be named as your executor, having their employees sign your will at witnesses does not break any of the witness rules. Just be sure that neither of the two people you have sign your will as witnesses are also named as beneficiaries or individual executors under your will.
These seemingly simple rules for witnessing a will can become very complicated, particularly when friends or relatives offer to help you prepare your will. Therefore, it is best to retain an independent lawyer who can guide you through the process. A simple will can be as cheap as $500.00. If you are looking for a lawyer to assist you with preparing your will or other estate planning documents, please complete our contact us form or call us at (800) 517-1614 and one of our attorneys will point you in the direction.
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