In order to make a valid will in Illinois:
- The testator must be at least 18 years old;
- The testator must be of sound mind and memory;
- The will must be in writing;
- The will must be signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses.
What Capacity Is Required To Make a Valid Will In Illinois?
Illinois law requires that the testator be of sound mind and memory in order to make a valid will. This means that a testator must be able to:
- Have sufficient mental ability to know and remember the natural objects of his bounty;
- Comprehend the kind and character of property held; and
- Make disposition thereof according to some plan formed in the testator’s mind.
The capacity requirement for a testator to make a valid will is set forth in 755 ILCS 5/4-1.
Lack of the requisite testamentary capacity is one of the most common grounds upon which wills are challenged in Illinois.
A testator is generally presumed to have capacity. However, there is a rebuttable presumption that a will is void if it was executed after the testator was adjudicated disabled and either a plenary or limited guardian has been appointed and the court has found that the testator lacks testamentary capacity. The presumption is overcome by clear and convincing evidence that the testator had the capacity to execute the will at the time the will was executed.
Witness Requirements For a Valid Will In Illinois
Illinois law requires that two or more credible witnesses must witness the testator sign the will. The testator must sign the will in front of the witnesses, and the witnesses must sign the will in front of the testator.
The witness requirements for a valid will under Illinois law are found in 755 ILCS 5/4-3.
If you are considering having a beneficiary serve as one of the witnesses to the will, read Can a Beneficiary Witness a Will In Illinois?
Does an Illinois Will Have To Be Notarized?
No, there is no requirement under Illinois law that a will needs to be notarized in order to be valid.
Are Handwritten Wills Valid In Illinois?
Handwritten wills can be valid under Illinois law if they meet all of the requirements for making a valid will.
Handwritten wills are often viewed with skepticism, and are more vulnerable to challenge, the thought being that if the testator really wanted to make a will, the testator would have prepared one with more formality than one that is handwritten.
Does a Will Have To Be Prepared By an Attorney Under Illinois Law?
There is no requirement that in order to be valid under Illinois law a will has to be prepared by an attorney. However, an Illinois estate planning attorney can make absolutely sure that all of the requirements to make a valid will are complied with, and prepare an estate plan that makes sense for you and your particular needs.
When a will is not prepared by an attorney, it is also more vulnerable to a will contest. An attorney who met with the testator, heard his or her wishes, and prepared the will at the testator’s request, is a key witness in defending against a will challenge.