Estate Planning in Illinois

Married with children (same marriage)

Spouse receives one-half of the entire estate. Children receive the other half, split equally per stirpes. This applies regardless of the children's ages — even a toddler inherits their share directly, requiring a court-appointed guardian of the estate.

Married with children from a prior relationship

Same rule — 50/50 split between spouse and all descendants. Illinois does not distinguish between children from the current marriage and prior relationships for intestacy purposes.

Married, no children

Spouse inherits the entire estate.

Single with children

Children inherit everything equally, per stirpes.

Single, no children

Parents, brothers, and sisters inherit in equal parts, with a surviving parent receiving a double portion. If no parents or siblings survive, grandparents and their descendants inherit.

What makes a will valid

A will must be in writing, signed by the testator (or by someone else in the testator's presence and at their direction), and attested by at least two credible witnesses who sign in the presence of the testator and each other.

What people think

That the surviving spouse automatically inherits everything, that a handwritten will is valid, or that notarization alone makes a will official.

What actually happens

Holographic wills executed in Illinois are not valid. Notarization does not replace witnessing. And without a will, the spouse receives only half the estate — the other half goes to the children regardless of their ages, potentially creating a costly guardianship situation.

Common failure

Witnesses not signing in each other's presence (Illinois requires mutual presence), using a beneficiary as one of only two witnesses, and dying intestate under the assumption that the spouse inherits everything.

When a trust is better

When you want to avoid probate, control distributions to minor children (rather than having them receive assets outright at 18), or manage property in multiple states. Illinois also allows TOD deeds for real property, which can be a simpler alternative to a trust for some homeowners.

Execution checklist

1. Sign the will in the presence of two credible witnesses
2. Both witnesses must sign in the presence of the testator AND each other
3. Execute a self-proving affidavit (notarized) to simplify probate
4. Do NOT use beneficiaries as witnesses unless at least two other disinterested witnesses also sign
5. Store the original securely

What it does

Grants authority to a named agent to manage financial, property, and personal affairs on your behalf.

Key rule

Illinois has one of the more comprehensive Power of Attorney statutes in the country. The Illinois Power of Attorney Act covers property powers, healthcare powers, and personal care powers in a single framework. The statutory short form is widely accepted by financial institutions.

Real-world friction

Less friction than many states because Illinois institutions are familiar with the statutory form. However, some banks still prefer their own internal forms. Using the statutory short form and keeping it current (within the past few years) minimizes rejection risk.

Common mistake

Not distinguishing between a property POA and a healthcare POA. Illinois separates these into different articles within the same statute. You need both — one does not cover the other.

What it covers

Illinois uses two separate documents: a Healthcare Power of Attorney (who makes decisions) and a Living Will (your instructions for end-of-life care). The Healthcare Surrogate Act provides a default decision-maker hierarchy when neither document exists.

What's different

Illinois has a three-layer system: the Healthcare Power of Attorney designates your agent, the Living Will states your treatment preferences, and the Healthcare Surrogate Act fills in the gaps if neither document exists. Most states combine the first two — Illinois keeps them separate.

Execution requirements

Healthcare POA: must be signed by the principal and one witness, and notarized. Living Will: must be signed by the declarant and two witnesses. The witnesses must be at least 18 and should not be the agent named in the document.

Common misunderstanding

Assuming that a property POA gives your agent healthcare authority. It does not — you need a separate Healthcare Power of Attorney. Also: relying on the Healthcare Surrogate Act's default hierarchy without checking whether it matches your preference.

When required

When assets are held solely in the decedent's name without a beneficiary designation, joint ownership with survivorship, TOD deed, or trust. Real property in the decedent's name alone requires probate unless a TOD deed was recorded.

What makes Illinois different

Illinois offers both supervised and independent administration. Independent administration, when authorized by the will or agreed to by heirs, allows the executor to manage the estate with minimal court oversight — similar to Texas. Illinois also allows TOD deeds for real property, which is a simpler probate-avoidance tool than a trust for some homeowners.

Probate paths

What people get wrong

Assuming probate is always necessary for a house. Illinois allows transfer-on-death deeds for real property — recording a TOD deed during your lifetime allows the property to pass outside of probate without a trust. Many homeowners don't know this option exists.

When a trust is useful

When you want to avoid probate, control distributions to minor children beyond age 18, manage property in multiple states, or maintain privacy. Trusts are particularly valuable in Illinois for families with young children because the intestacy 50/50 split creates guardianship complications that a trust avoids entirely.

When a trust is unnecessary

Small estates under $100,000 in personal property that qualify for the small estate affidavit. For homeowners who only need to avoid probate for real property, a TOD deed may be simpler than a trust.

Key mistake

Creating a trust but not funding it — the same risk as every state. In Illinois, the TOD deed provides a simpler alternative for real property, but bank accounts, investment accounts, and other assets still need to be retitled.

Assuming the surviving spouse inherits everything

In Illinois, if you die with a spouse and children, the estate is split 50/50. The children's half — even for infants — requires a court-appointed guardian of the estate with ongoing court oversight.

Not knowing about TOD deeds for real property

Illinois allows transfer-on-death deeds that pass real property outside of probate. This is simpler and cheaper than a trust for many homeowners, but most people don't know the option exists.

Using a holographic will after moving from a state that recognizes them

Illinois does not recognize holographic wills executed in Illinois. A will from another state may be recognized if it was valid there, but this creates uncertainty. Execute a new will in Illinois.

Confusing property POA with healthcare POA

Illinois separates these into different articles of the Power of Attorney Act. A property POA does not grant healthcare authority. You need both documents.

Not including independent administration authority in the will

Without it, the estate may be subject to supervised administration — slower, more expensive, and more burdensome for the executor. Including this authorization in the will is a simple step that saves significant time and cost.

Relying on the Healthcare Surrogate Act's default hierarchy

The statutory hierarchy may not match your preference. An unmarried partner, for example, has no standing under the default hierarchy. A Healthcare Power of Attorney lets you designate the person you actually want making decisions.