Category: Wills


Living Will verses a Last Testament and Will

It is always important to have a will to make sure that your wishes are met in order to provide for your family and friends. There are two main types of wills that most people execute while doing their estate planning – a living will and a last testament and will. But what is the difference?

            A living will, also called an advance healthcare directive, specifies what is to be done if a person cannot make decisions for themselves due to incapacity or illness. Most living wills direct if someone wants to be kept on life support, especially if that is the only thing keeping the person alive. In a living will, there is no executor. This is a person’s final directive while they are still alive, addressing their quality of life if some accident or illness befalls them.

            In comparison, a last testament and will goes into effect after a person dies. This will directs how a person wants their assets and property to be disturbed after their death. This type of will makes sure that their wishes will be followed when they are gone. In this will, the person chooses an executor. The executor executes the will on the person’s behalf. The executor is responsible for distributing the assets and property as stipulated in the will.



When a person dies, Illinois law generally requires that the decedent’s estate go through the probate process.  The exception to this rule is if the decedent owned no real estate at the time of death, and the remainder of the estate is valued at less than $100,000.  In this situation, the decedent’s heirs can use a Small Estate Affidavit to obtain and distribute the estate’s property.  However, if the Small Estate Affidavit exception does not apply, Illinois generally requires a court of law to probate the estate.

An estate may be probated whether or not the decedent left a Will.  If a Will exists, the estate must be divided pursuant to the Will’s instructions.  If there is no Will, the decedent is deemed to have died “intestate.”  The estate is then divided pursuant Illinois’ laws of intestate succession.  In general, intestate succession in Illinois provides for the decedent’s spouse and children to receive the estate.  If the decedent left no spouse or children, the estate is divided among decedent’s parents or siblings.

In order to initiate the probate process, the decedent’s original Will (if applicable) must be filed with the Circuit Clerk in the county where the decedent resided at the time of death.  Next, a Petition to open probate estate must be filed.  The Petition must plead the following facts:

  • Full name of decedent;
  • Decedent’s place of residence at death;
  • Date of death;
  • Place of death;
  • Approximate value of the decedent’s real estate located in Illinois;
  • Approximate value of the decedent’s personal property located in Illinois;
  • Approximate value of the decedent’s real estate located outside Illinois;
  • Approximate value of the decedent’s personal property located outside Illinois;
  • Full name and mailing address of the Petitioner;
  • Full names and mailing addresses of the decedent’s heirs;
  • Whether any of decedent’s heirs is a minor or person with a disability.

If decedent died with a Will, a Petition to admit the Will to probate must also be filed along with a Petition for Letters of Office.  The Petition for Letters of Office should be verified, or sworn to, by the Petitioners.  The Petition for Letters of Office asks the court to appoint a certain individual, called an Executor, to manage decedent’s estate as identified in the Will.

If the decedent dies without a Will, a Petition for Letters of Administration is filed.  In this Petition a close family member or friend asks the court’s permission to serve as the Administrator of the estate.  The court will generally appoint this person as the estate’s Administrator.  The Petition for Letters of Administration should identify the Petitioner, the Petitioner’s relationship to the decedent, and a formal request to be appointed Administrator.

Before the court will appoint an Executor or Administrator, the individual seeking appointment must submit an Oath of Representative that swears the individual will perform his or her duties in accordance with the law.  If there is no Will, the Court may require the Petitioner to post a bond.  Many Wills waive the bond requirement.

Once the Executor or Administrator is appointed, the court orders the circuit clerk to issue the Letters of Office.  The court will also issue an order naming all of the decedent’s heirs.

Within 14 days after the Letters of Office are issued, a Notice to Heirs and Legatees must be sent to all known heirs.  This Notice must include the Petition for Probate, the Order admitting the matter to Probate, and a description of the rights of the heirs.

Also within 14 days of the admission to Probate, a Notice to Unknown Creditors must be published in a local newspaper that advises the estate was opened and creditors have 6 months to file a claim against the estate.

During this 6 months, the Executor or Administrator should be distributing the estate’s property to the heirs named by the court.  Once the 6 month period for creditors to file a claim expires and all estate property is distributed, the estate should be closed.

Navigating a probate case in Illinois can be difficult.  If you are wondering how to manage the estate after the death of a loved one, local attorney Andrew Szocka can provide thorough and speedy probate and estate help in the Chicagoland area.  To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

When Should You Update Your Estate Plan?

If you already have an estate plan, you may not realize that you need to update it regularly. But how often do you need to update the plan, and how will you know that it needs some changes? We recommend that you revisit your estate plan just before or just after any major life changes, or at least every few years.

Man and Women holding hands

Major Life Changes Often Require Estate Plan Updates

The most frequent reason you will need to update your estate plan is because of major life changes. Lawyers customize wills, trusts, and other estate planning documents to fit each client’s individual circumstances. When those circumstances change, the plan may no longer match the client’s wishes.

Major life changes that may trigger the need for an estate plan update could include:

  • Marriage
  • Divorce
  • Birth or adoption of a child
  • Death of a relative
  • Major financial problems
  • Receiving an inheritance
  • Moving
  • Buying a house or other property
  • Changing jobs

Everyone’s circumstances are different, and you may experience other changes that lead you to change your plan. For example, some people decide to edit their wills after major disagreements with relatives or losing touch with family.

Other Reasons to Update Your Estate Plan

In addition, you may need to update your plan (but not know it!) if the laws change in your state or nationwide. In particular, many changes to the federal tax laws went into effect at the beginning of 2018. The new estate tax provisions could affect your plan.

Another reason to change your plan could arise over time. As you increase retirement savings or begin thinking about your legacy to your relatives, you may want to set up more estate planning. You could start a family trust, decide to open a foundation, or want to sign a medical directive. Updating your estate plan every few years will keep your planning in line with your goals.

Want to update your estate plan today? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What Happens When a Relative Dies Without a Will?

When a relative dies without a will, your family may not know what to do. Problems you may encounter include how to deal with funeral expenses, how to cover immediate bills, and what to do about the estate.

No Will? The Estate Needs a Representative

If you and your family cannot find your relative’s will, and there are bills to pay or assets to distribute, you may need help from the court. The probate court can appoint an estate representative to manage and distribute the deceased relative’s estate.

Note that you should not spend your deceased relative’s money until the court appoints the representative. While your family may want to use the money for a funeral or to pay bills, you should wait even if it means delaying the funeral. To make sure the deceased person’s assets stay in good repair and are distributed to the right people, you need to seek legal help as soon as possible after the death.

If There’s No Will, Who Gets the Assets?

Once the court appoints a representative, he or she will begin gathering assets and identifying heirs. The representative is also in charge of managing the deceased person’s money and property, including paying for the funeral and bills. The court provides some minimal supervision, such as requiring the representative to submit an estate inventory and accounting.

Since there is no will, the law of intestate succession will apply. This law explains who receives the estate assets and in which order. Any living spouses or children will inherit the bulk of the estate. If a spouse or children have died before the relative did, then more distant relatives such as parents or grandchildren could inherit. The intestate succession law in Illinois is very complicated, so the personal representative may need a lawyer’s help to interpret it.

Also, the estate may need to pay debts before the representative makes the final distribution to heirs. Many creditors have priority over estate funds, so they get paid first with anything left over going to heirs later. As a result, inheritances from people with many debts and few assets could be smaller than expected.

Finally, the lack of a will can create legal disputes among relatives about distribution of property. It is especially important to seek legal help as soon as you realize that there is no will. Having a lawyer for the estate can head off arguments before they begin.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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