Be Careful When Modifying your Will in Illinois

 Posted on January 07, 2014 in Estate Planning

A Last Will and Testament is the most well-known estate planning document. A Will is used to distribute property to beneficiaries at death and make other end-of-life wishes known. Today there are many more options to efficiently handle these matters--like use of a living trust. But even with the expanded choices, the Will remains the most commonly used estate planning tool.

 Illinois law is very specific in identifying the exact requirements that must be met for a Will to be deemed valid.  The Illinois Probate Act of 1975, lists those requirements, which include that the will be in writing, witnessed and signed at the same time by two individuals who are not beneficiaries under the will, that the testator have the capacity to sign the Will at the time, among other formalities. It is quite common for Illinois residents to hire an attorney to draft a Will. Failure to do so often results in a Will being rejected by the court at the very time when it is needed. However, even those who have the aid of an attorney when drafting a Will can later make the mistake of modifying the document without legal guidance. This is usually an error that can result in the document being rendered ineffective and assets distributed via intestacy rules against the actual wishes of the testator. There are formal requirements that must be met even when modifying a Will.  Think Before You Act

A common mistake is for someone to take a Will created by an attorney and simply write changes on top of the older document. Will those changes be upheld by the court? Unlikely. Changes or additions to a Will, usually referred to as a "codicil," generally must meet the same signature and witnessing requirements as the a new Will itself. Those requirements are safeguards to minimize the risk of fraud or deception. As such, crossed out names, changed bequests amounts, or other handwritten adaptations to a previously signed Will must not be made haphazardly.

 In practical terms, it is always best to simply have a new Will drafted when you are interested in changes. With modern technology, it is a relatively easy process to make alterations or additions to a digital document, and so formal codicils are less necessary. In this way, all the formalities can be followed explicitly, with an unaltered Will available when necessary to lower the risk that another party may challenge the document in probate. As always, if you are considering changes to your Will (or you want one drafted) contact our  DuPage County estate planning attorneys today to see how we can help. Our team at Stock, Carlson, Flynn, and McGrath, LLC works with residents in Wheaton, Glen Ellyn, St. Charles, and many other local communities.