3 Things a Last Will and Testament Can Accomplish (And 4 Things It Can’t)

A last will and testament, or ‘will’ for short, is a legal document that communicates your wishes regarding how your assets will be distributed after you pass away. Although wills are an essential part of any comprehensive estate plan, it is also important to understand what their limitations are so that you can create alternative arrangements, such as trusts and powers of attorney.

Here are three things that your will can accomplish:

  1. You can specify who receives your property after your death. Without this type of direction, the probate courts will dictate who receives a share of your estate based on the particular intestate laws of your state. In Illinois, if you pass and only have a will, your estate may still probate.
  2. You may name an executor. The executor is the one who will arrange and oversee the distribution of your estate. Your will enables you to name someone who is personally and financially responsible and otherwise suited for the task.
  3. You may name a guardian for your minor children. If your children are still minors at the time of your death, naming a legal guardian for them in your will can ensure that their future physical, emotional, and financial needs are met by the right person. Without naming a guardian for your minor children, you risk a lengthy custody battle over your children in the probate courts. Not only will your children have to cope with your death, but know they will have to cope with your family members and/or friends fighting over them in what could be a lengthy court battle.

Four things that your will cannot accomplish include:

  1. Protect your estate from Probating or entering the Probate Court in Illinois. If you live in Illinois and you own Real Estate and/or your estate/assets are worth $100,000.00 or more, your will and estate will likely be subject to the probate courts. Often, the best way to avoid probate, is to have a Living Revocable Trust. Despite the common misconception, a Living Revocable Trust is not just for the wealthy!

If you have a will, but do not have a Living Revocable Trust, and do not own Real Estate and/or your estate is worth less than $100,000.00 it is likely that your estate will not be subject to a lengthy probate process.

  1. You may not make arrangements for jointly owned property. If you own any assets in joint tenancy with someone else, your share will automatically pass to the surviving co-owner regardless of what other arrangements you specify in your will.
  2. Insurance policies and retirement accounts are not subject to a will’s terms. If you have specified a beneficiary in your life insurance policy or your retirement accounts/pension plans, the proceeds simply pass to that named beneficiary. They cannot be allocated in a will. The same condition exists with brokerage accounts that have a transfer-on-death (TOD) beneficiary named.
  3. You cannot dictate who receives assets in a living trust. If you set up a living trust, the trust documents indicate who receives the property and income. The only time a will can override trust directions is when the latter provides you with a power of appointment, which lets you direct who receives the trust property. Few trusts grant this ability, however, because a power of appointment results in the trust being taxed in your estate.

Drafting a will can be a complex procedure, and ensuring that it meets your needs while remaining compliant with state law adds an extra dimension of challenge. It is therefore preferable to meet with an experienced estate planning attorney to review your goals and determine whether certain aims are better accomplished by setting up a trust.

If you need assistance with developing a well-rounded estate plan please contact Lake Cook Legal Solutions, LLC at 847-387-5559. When you work with our experienced estate planning team, you can be confident that we will devise the best solutions for you and your family.

Written by Lake Cook Legal Solutions, LLC

Lake Cook Legal Solutions, LLC

Lake Cook Legal Solutions has been helping people throughout Lake, Cook, McHenry, and DuPage counties since 2012. We focus our practice on matters involving Illinois families—namely Family Law and Estate Planning.