Tag: testator

What Happens If One of Your Heirs Dies Before You?

If one of your heirs listed in your will happens to die before you, your estate gets distributed differently. It is a good idea – for your own peace of mind – to figure out who would receive the inheritance instead. Also, you should be aware of the effect that the language in your will could have on estate distribution.

Figuring Out Who Inherits When an Heir Dies Before the Testator

If an heir listed in your will dies before you, ideally you would change your will to take that person out. But not everyone has the chance to make that change. Sometimes, the testator does not even know that the heir died. When the will leaves a gift to a deceased person, there are a few options for what happens to the gift.

Often, the will’s language explains that the gift will go to someone else (a successor). The will may use language like “to the survivor” or “if John does not survive me, then to Jane”. It is important to be very clear about the language you use to describe who inherits if an heir predeceases you. In one recent case, family members got into a dispute over the meaning of the phrase “to share and share alike in equal shares or to the survivor or survivors of them.”

What If the Will Doesn’t Mention a Successor?

If the will is silent about who inherits a gift if the heir dies, it matters whether the gift is to a descendant or to a group of people. If the gift is to a single descendant (child, grandchild, etc.) of the testator, then the descendants of the heir who are alive at the time will receive the gift “per stirpes” (each branch of the family receives an equal share of the gift). In other words, if the deceased heir was the testator’s sister and she had one living child and two living grandchildren from another deceased child, then the child gets 50% of the gift and each grandchild gets 25%.

If the gift is to a group of people, and one of the people dies, then the rest of the group receives the portion of the gift that the deceased heir would have received. However, if the deceased heir is the testator’s descendant, then the rule described above for a single descendant applies.

Finally, if neither of the two situations described above apply, then the gift becomes part of the residue of the estate (anything left over after making specific gifts). Whoever inherits the residue will inherit the gift.

As you can see, determining who inherits if an heir predeceases the testator is extremely complicated. It is best to include language in your will specifying what happens if an heir dies.

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.

Capacity to Make a Will: What You Need to Know

If your ailing relative wants to make his or her will, the concept of capacity could come into play. Capacity to make a will affects whether the will is valid when the relative’s estate is distributed. If the creator of the will did not have capacity when he or she signed it, the probate court may not enforce its terms.

What Is Testamentary Capacity?

Capacity to make a will (testamentary capacity) is defined as the “mental ability to know and remember who are the natural objects of [your] bounty, to comprehend the kind and character of [your] property, and to make disposition of the property according to some plan formed in [your] mind.” In other words, to make a will you need to understand which property you own and be able to plan out how to distribute the property to others.

How Do You Tell If Someone Does Not Have Capacity?

The probate court must assume that a person making a will has testamentary capacity, unless it is proved that he or she did not. Physical impairments alone usually do not make someone lose capacity. It is more likely that a mental impairment would make someone lose capacity. In other words, the inability to speak or move does not necessarily mean someone cannot make a valid will. But someone with a severe mental impairment such as advanced dementia might not have capacity.

In addition, the appointment of a guardian for someone may be evidence showing the person does not have capacity. But neither physical impairments nor having a guardian are conclusive evidence.

Why Does Testamentary Capacity Matter?

If the person making the will did not have capacity at or around the time it was signed, the probate court may invalidate the will. An interested person such as a relative must “contest” or fight the will in court. He or she has the burden of providing evidence that the testator did not have capacity.

When an interested person wins a will contest, the will in question is disregarded. The testator’s property might pass to relatives via intestate succession or an older will might be used instead. This could drastically affect how the estate is distributed.

Have questions about making your will? 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.

Undue Influence When Making a Will: What You Need to Know

When someone uses undue influence to affect the contents of a will, that will may not be valid. If you are helping a relative manage his affairs, you should know how undue influence could negatively affect his legacy. Alternatively, if you are shocked at the contents of a deceased relative’s will, you may need to figure out whether it was the product of undue influence.

What Is Undue Influence?

Unfortunately, a friend or relative looking to inherit may persuade a person making his will to change the contents. The law calls this “undue influence” when it “prevents the testator from exercising his own will in the disposition of his estate”. In other words, the friend or relative’s wishes end up in the will, rather than the testator’s wishes.

When someone is unduly influenced, he or she may have been pressured, bullied, or misled. But even kindness or affection could become undue influence if they keep the testator from putting his own wishes in the will. For example, a relative who wants to inherit more money might begin spending more time with a testator, being friendly while subtly hinting that the other relatives do not deserve inheritances.

When Does Undue Influence Happen?

To call a will into question, the undue influence must have been directly connected with the will’s signing. It also must have been operating on the testator when the will is made. In other words, the undue influence can’t have happened years earlier. And it can’t have been on a subject other than the contents of the will. (However, elder abuse laws might prohibit other kinds of influence over an older person’s actions.)

Who Can Unduly Influence a Testator?

Heirs, potential heirs, and people connected to heirs can unduly influence a testator. For example, a son could convince his mother to increase his inheritance and disinherit his siblings. Or the son’s wife could convince her mother-in-law.

Suspected undue influence may lead to a will contest in probate court. The disinherited siblings, for example, could question whether the son unduly influenced the mother’s will. If the court finds that there was undue influence after reviewing the siblings’ evidence, the will would not be valid. A prior will or the order of intestate succession would dictate how to distribute the estate.

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.

Signing and Witnessing a Will in Illinois

When you make a will in Illinois, you must follow specific signing and witnessing legal requirements. The requirements help ensure the identity of the person who signs the will and protect against fraud.

What Are the Signature and Witness Requirements for an Illinois Will?

A properly signed and witnessed will is a legally binding document. It binds the probate court and the estate executor to follow what it says, regardless of heirs’ disagreement. To execute a will, the law requires the following:

  • A testator (the person making the will) with capacity to act, and not acting under someone’s undue influence;
  • A written will;
  • The signature of the testator on the will document (or the signature of a person who signs in the testator’s presence and at his direction); and
  • Attestation by two credible witnesses in the testator’s presence.

Unfortunately, testators do not always follow these requirements to the letter. For example, someone might have only one witness or have the witnesses sign outside the testator’s presence. The testator might forget to sign the will altogether or not have the capacity to make a binding legal will. The courts have dealt with many cases involving wills that may or may not meet the requirements.

Unless the testator properly executes his or her will, the probate court could disregard it. If there is no earlier will, the court would order that the testator’s estate be distributed by the rules of intestate succession to close relatives.

How Can You Meet the Signature and Witness Requirements?

Talk to the lawyer who prepares your will about how to get it properly signed and witnessed. Your lawyer may even have disinterested witnesses available, so you can sign the will right away. Businesses that offer notary services are another option to find witnesses if you need them.

If you decide to prepare a will yourself, ensure that you understand the signature and witness requirements and follow them. Otherwise, your wishes may not be carried out when it comes time to distribute your estate.

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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