Carol Stream Attorneys Answer Frequently Asked Questions About Wills, Trusts and Estate Planning
At Johnson, Westra, Broecker, Whittaker & Newitt, P.C., our attorneys engage in the full range of estate planning practices for our clients throughout the Chicago area, including drafting wills, trusts and powers of attorney and providing comprehensive estate tax planning. Below are answers to some of the questions our lawyers encounter most frequently in our estate planning practice. If you have other questions or need the assistance of a qualified and experienced attorney to create, review or revise your estate plan, please contact Johnson, Westra, Broecker, Whittaker & Newitt, P.C. at our offices in Chicago, Carol Stream and St. Charles.
What is required to make a valid will in Illinois?
The will must be in writing (usually typed) and signed by the person making the will, known as the testator. The testator must have the intent to create the will at the time. The testator’s signature must be witnessed by two individuals who understand that the testator is signing his or her will at the time.
Is a handwritten will valid?
Some states recognize what is known as a holographic will, which is a will created entirely in the testator’s own handwriting and is signed by the testator, but is not necessarily witnessed. Holographic wills are invalid in Illinois. However, a handwritten will that is witnessed and meets the other formalities required for a will may be accepted.
What is a living will?
A living will is a legal document which states your desire regarding being put on life support or given other measures to prolong your life in the event you are diagnosed with a terminal condition. Having this document helps to ensure your wishes are respected even if you are unable to communicate or express them. A living will also relieves your immediate family members from having to make an otherwise agonizing decision at a difficult time. In addition to wills and trusts, a living will is part of a comprehensive estate plan, along with a durable power of attorney for health care and other important advance directives.
Do I have to have a will, or can I use trusts instead?
A trust is an excellent vehicle for estate planning, with benefits such as minimizing probate while enhancing asset protection and tax planning. However, even if you are planning on distributing all of your estate through trusts, life insurance policies and other non-probate vehicles, there are still several important reasons to have a will. With a will, you have the power to appoint a person you trust to serve as the executor or representative of your estate. You can also name a person to be guardian of your children if necessary. A “pour-over” provision in a will can also make sure that any property you may have overlooked gets placed into trust and distributed according to your wishes.
What is required to create a valid trust?
The requirements for a valid trust are not as clearly spelled out the way they are for a will, but there are some basic requirements that should be followed for every trust. First, the trust should be in writing and created for a lawful purpose by a competent person. While there is a lot of flexibility over who can be named as trustees and beneficiaries, the trust should not name just one person to act as both sole trustee and sole beneficiary. Also, in most cases the trust should clearly define the beneficiaries or provide a method by which they can be clearly ascertained. Another important step in creating a valid trust is funding the trust by titling assets in the name of the trust. An experienced estate planning attorney can be critical to making sure the trust is properly created and funded.
What if the trustee is abusing his or her power?
The trustee owes several fiduciary duties to the beneficiaries. For example, the trustee must be loyal and impartial to the beneficiaries and must be prudent in the investment and management of trust assets, avoiding any self-dealing or other conflicts of interests. Beneficiaries who believe their rights are being violated may bring litigation against the trustee and may be able to remove a trustee who is violating his or her duties. If any monies or trust assets were wrongfully taken or lost, the beneficiaries may also be able to recoup damages from the trustee.