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Illinois law provides that any property given to a witness or his spouse is void unless the will also is witnessed by two other disinterested witnesses.

Life Care Planning, Estate Protection, Disability,
VA & Medicaid Assistance Lawyers

CAN I MAKE MY OWN WILL?

CAN I MAKE MY OWN WILL?

 

            The short answer is "yes."  But if you have read this far, you want a good answer not a short answer.

 

            Let me tell you about Howard, a "shade-tree mechanic" sort of guy who had prepared his own will from a will-making kit he had purchased for $39.95.  While Howard had saved a few hundred dollars, perhaps even a thousand or so, by making his own will, his tightfistedness cost his heirs many thousand of dollars.

 

            Sean and Jennifer, Howard's son and daughter-in-law, came to me after Howard's demise.  They wanted to sell Howard's fractional interest in a farm located in Kentucky that Howard had inherited from his father.  They also wanted to clear title to Howard's home here in Illinois. Sean's brother, Eddie, wanted the home sold and the proceeds divided.

 

            Howard's will gave his house to Sean and Jennifer.  They had lived next door to Howard and had taken care of him for several years prior to his death.  Howard's will nominated Sean to be the executor of the will and Sean felt this should give him the final word on Howard's home.  Unfortunately, the will was not properly witnessed.  Three persons had witnessed the will, one more than is currently required by Illinois law.  But Sean and Jennifer had served as two of the witnesses.

 

            Illinois law provides that any property given to a witness or his spouse is void unless the will also is witnessed by two other disinterested witnesses. Since the will left the house to Sean and Jennifer, they were not disinterested witnesses. And since the will was witnesses by only one disinterested witness, Sean and Jennifer could not receive title to Howard's home by way of the will.

 

            The will also had a number of other technical deficiencies.  For example, the attestation clause was defective.

 

            As events would later play out, Eddie hired an attorney and challenged the will - citing all of the deficiencies I had anticipated and threw in a few other grounds for good measure.  The probate court ruled that the will was not valid and required Howard's estate to proceed as an intestate estate (i.e., without a will).  When the dust finally settled after several years and many thousand of dollars later, Howard's factional interest in the Kentucky farm was sold but the proceeds were largely consumed by the family squabble.  Sean and Jennifer got Howard's house - but only after they paid Eddie half of its appraised value.

 

            Prior to Howard's case, when someone would ask me whether they could do their own will, I would patiently explain the Illinois requirements for a valid will.  But no more.  Now, when someone asks me whether they can do their own will, I politely tell them "sure" but quickly follow with a more helpful response.  Drawing upon my experience in Howard's case, I help them to realize they can pay an attorney now or their intended beneficiaries can pay an attorney latter.

 

            Saving a few bucks is a goal we all aspire to achieve. But would you really want anyone other than a qualified surgeon, a board certified neurosurgeon, performing your brain surgery - even if you could save a bundle?  What you have worked a life-time to accumulate, whether the amount is modest or grand, should not be jeopardized by being "penny wise and pound foolish."  Poor or inadequate planning is very expensive.

 

            Richard Habiger is an estate planning and elder law attorney.  You may contact him at 618-549-4529 or Richard@HabigerElderLaw.com.


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1808 Clark Street, Carterville, Illinois 62918
Phone: 618-985-4529
Toll Free: 800-336-4529

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Phone: (618) 985-4529