With the Flux of Interstate Migrations, How Can Chicago Residents Effectively Plan Their Estates Across State Lines?

Is a Will Drawn Up in Illinois Valid in Another State and Vice Versa?

This is both a simple and a complex question. A will drawn up in Illinois should be recognized as legally binding as long as it adheres to Illinois laws. The reverse is also true; a will drawn up legally in another state should be valid in Illinois. That comes from the U.S. Constitution, which requires states to give “full faith and credit” to laws in existence in other states.

But other factors come into play. One key aspect is that the will must be drawn up to abide by the laws of the state where it’s drawn up. If a will is created in Illinois but doesn’t follow the laws, it may not be legally binding in Illinois or any other state. Another factor is the primary residence of the person who has the will. Suppose they lived in Illinois at the time the will was created but moved to another state to live there permanently. In that case, the will may still be valid, but to be safe, they should have it reviewed by an estate planning attorney in the new state to ensure it’s legally acceptable there.

Sometimes, people think that laws governing estate planning are the same across the U.S., but that’s far from the case. For example, some states allow handwritten or oral wills, while others refuse to recognize them. This could cause a will to be deemed invalid by a state’s probate court, which then would have the right to distribute the assets as the court sees fit rather than as the will’s creator wanted.

What Does Illinois Require for a Will to be Valid?

Illinois has several requirements for a will to be legally binding.

• Minimum age of 18.
• Of sound mind. This means the person drawing up the will (the testator) has the mental capacity to understand what they’re doing.
• Typed and printed. If all other requirements are met, a handwritten will is also acceptable. Oral or video wills are not recognized in Illinois. 
• Will signed in the presence of two witnesses, neither of whom is a beneficiary (a person who is assigned assets) in the will. If the testator is unable to sign, they can direct another person to sign it on their behalf.
• Both witnesses signed the will, testifying they witnessed the testator signing it. 

To ensure your will is legally valid, it’s crucial to work with an experienced estate planning attorney.

What Happens if I Die Without a Will in Illinois?

Dying intestate happens when someone dies without a will. Illinois’ probate court determines how someone’s estate is distributed when that happens, focusing on blood and marital relatives.

• Spouse. If there are no children, the entire estate would pass to the existing spouse. This includes spouses from whom the deceased was separated if there was no divorce or legal separation.
• Children. If the spouse and children are alive, half of the estate goes to the spouse, and the other half is divided among the children. If the spouse isn’t alive, the estate will be divided among the children.
• Parents and siblings. If there are no surviving spouses or children, the deceased’s parents and siblings would divide the assets. If only one parent is alive, they will receive a double share. If neither parent is alive, the siblings share the assets.
• Assuming none of the above exist, the following is the order in which the estate would be distributed.
• Nieces and nephews.
• Grandparents, aunts, uncles, and cousins.
• Great-grandparents and their descendants.
• Any “kindred” who can establish a relationship.
• If no relatives can be found, real property goes to the county where it’s located, and personal property goes to the state.

There are many situations where someone would not want certain family members to receive assets. This can be for many reasons, such as estrangement or if someone is known to have trouble managing finances. There are also times when someone should receive a larger share of the inheritance than others. For example, if one child provides care to a parent while they’re dying, the testator may wish to give them more assets than children who weren’t involved. A will can help prevent assets from going to those people who might otherwise receive an inheritance from the probate court, or it can ensure that the assets aren’t divided equally.

Another aspect of not having a will involves minor children being orphaned. A will is the legal document required to assign guardianship to orphaned minors. If there’s no will, the probate court will determine guardianship, likely focusing on close family members. 

It’s vital to understand that other estate planning techniques, including trusts, cannot address guardianship. Only a will can do that. 

How Do the Courts Divide Things Equally?

What Should I Do if I Have Questions About My Estate and Will Involving More Than One State?

Call Nery Richardson & Konewko as soon as possible at 773-232-6643 to schedule a consultation. Every estate plan and will is unique, with no one-size-fits-all approach. I can review your estate’s details, including the geography involved, and provide guidance as to the best approach to ensuring your wishes are met regardless of where the will is located. I understand how vital it is to you to ensure your legacy is carried out according to your wishes.