Once a valid will is created, it does not need to be filed with an official registry to have legal effect upon the death of the person who wrote it. However, it must be filed with the clerk of the probate court shortly after the testator dies so a judge can declare the will valid and appoint the executor.
Therefore, a will needs to be kept in a secure place, with the right people knowing where to find it. Illinois took a big step this summer to give residents a secure place to store original wills by authorizing a statewide, county-level will depository system.
At Plan Forward Legal, the Chicago estate planning attorney counsels clients on best practices to keep estate planning documents safe and ensure ready access when needed.
Requirements for a Valid Will in Illinois
Wills aren’t looked at frequently, and the validity of a will is typically not determined until after the testator dies, which can be many years after the will was created. Following all legal requirements for creating a valid will helps avoid delays in the probate process.
The Illinois Probate Act has four basic requirements for creating a valid will.
- A will must be in writing.
- The testator must be at least 18 years of age.
- The testator must be of sound mind and memory.
- The testator must sign the will in the presence of two attesting witnesses.
If a will is not validly executed, it is void. Voiding a most recent will revives a prior valid will if one exists. If no other valid will exists, a court will follow the procedures and distribution plan prescribed by state intestacy laws.
Testamentary Capacity
A testator is only required to be of sound mind and memory at the time the will is signed. This means that right at the very moment the will was being signed, the testator understood the following:
- That they were making a will
- The nature and extent of their property
- Who their natural heirs and intended beneficiaries are
- How the property is to be distributed
The law recognizes that a person otherwise suffering from a cognitive impairment or mental illness can still have a lucid interval long enough to execute a valid legal will. There is a legal presumption that the testator of a properly executed will was of sound mind and memory at the time of signing.
Attestation of Witnesses
Valid attestation by witnesses is sufficient proof for a court to admit a will to probate without requiring the physical presence of the witnesses. Witnesses must attest to being present when the testator signed the will, that they signed the will in the presence of the testator, and that the testator had the mental capacity to execute the will at the time of signing.
What Happens When a Will is Lost?
When someone dies, one of the first things to do is locate the person’s estate planning documents. Any person in possession of a decedent’s original will has a duty to file it in the clerk’s office of the county where the decedent last resided. If the person in possession is the executor, they must file the will within 30 days.
But what if, despite best efforts, the original will cannot be located? Will a copy do?
If an original will can’t be found, the law presumes that it is because the testator intended to revoke it. The presumption can only be overcome by ‘clear and convincing’ evidence that the testator did not intend to revoke the original. A testator’s intention will be determined by the totality of circumstances available to be considered.
Agreement among all interested parties is generally a favorable influence on the court’s decision regarding the validity of a will. Still, if a court is sufficiently convinced the original was not revoked, it may admit a copy of a will to probate even if all heirs and beneficiaries do not agree it’s valid.
Steps to Take to Keep Your Will Safe
An original will can be kept in a home filing cabinet or a home safe. A safe offers protection from the environment and is usually easy to locate. An offsite safe deposit box can also be a secure location for important documents. It’s a good idea to let someone trusted outside your immediate living situation know how to locate your original will.
Law firms and attorneys may or may not offer some type of secure storage for original estate planning documents. Attorneys who possess original wills but are unable to locate the testator are allowed to deposit them with the Secretary of State for safekeeping.
Illinois’ New Will Depository Law
In July, Governor Pritzker signed Senate Bill 3291 into law, creating Public Act 104-0719. The new law allows the clerk of any state circuit court to establish a will depository to safeguard original wills.
Any resident of a county with a participating circuit court may voluntarily file their original will with the clerk for a small fee. The will is kept sealed and secure for 100 years, or until released to qualified parties. A testator may withdraw a deposited will at any time.
The Clerk of the Circuit Court of Cook County led the effort to pass the law and will participate in the program, which will take effect January 1, 2027.
Plan Forward Legal Will Guide You through Planning Your Estate and Securing Your Legal Documents
When you are ready to take the necessary steps to plan for your future and make sure your family will be protected, you can be confident that your wishes will be carried out if you choose to partner with Plan Forward Legal.
Plan Forward Legal offers comprehensive estate planning services to Cook County families, helping them establish a secure future and protect the people and things that matter most. Plan Forward Legal provides solutions with a refreshing blend of competence and compassion. We’re easy to talk to, and we know our stuff. Let’s plan together. Call Plan Forward Legal.
