Welcome to the
Stepnowski Law Offices
The Law Office of Edward L. Stepnowski
The Law Office of Frank E. Stepnowski
Harlem Ave., suite 205-2
(708) 848-3663, 848-3662
and Estate Planning
Frequently Asked Questions
Is a Will?
Happens When There Is No Will?
it cost more to have a will?
is involved in settling an estate?
there a substitute for a will?
will be changed?
should a will be changed?
Can a will direct
my doctor to “pull the plug”?
an attorney prepare a Living Trust?
is the Power of Attorney for Property?
What Is a Will?
A will is a written document in which
you direct what will happen to property you
alone own after your death (called your
estate). It names the persons whom you wish
to benefit or protect (called
beneficiaries), and designates someone
(called an executor) to carry out your
directions as to the distribution of your
To make a valid will, Illinois law
- you must be at least 18 years old
- you must be of sound mind and memory
- the will must be in writing
- the will must be signed by you and
witnessed by two or more people who sign
as required by law
If you do not meet these requirements,
your will not be valid and the result will
be the same as if you had no will.
The executor does not have to be an
Illinois resident, but it will be easier if
the executor is an Illinois resident. The
witnesses should not be related to you and
should not be beneficiaries or a spouse of a
beneficiary. If your will disposes of real
estate in another state, there will be
requirements of that state that must also be
It is not safe to use a form or copy of
someone else’s will. It is very unlikely
that your circumstances and relationships
will be the same as those of your neighbor.
What Happens When
There Is No Will?
If you do not have a will, the law
requires that any property you own alone is
distributed according to very strict rules
that may be different from what you want to
happen with your property after you die.
In general, if you die without a will,
your spouse is still alive, and you have no
children, then your spouse will get your
entire estate. If your spouse is alive and
you have one child or other descendent (such
as a grandchild or great-grandchild), then
your spouse will get ½ of your estate
and your child or other descendent will get
½ of your estate. If you leave a
spouse and more than one child or other
descendent, then your spouse will get
½ of your estate and your child or
other descendents will get equal portions of
the rest of your estate. If you leave no
spouse, then your estate will go to your
children or descendents in equal portions.
If you leave no spouse and no children or
other descendants, your estate will be
divided among your parents and brothers and
sisters and, if a brother or sister is dead,
to his or her children or other descendents.
There is a special need for a will if
you have children under the age of 18. A
guardian should be named who will take care
of them after you are dead and make sure
that any property they inherit is protected
until they reach 18.
For example: Charles and Ruth
had an only child (age 5) named Jane.
Charles died without a will. Both Ruth and
Jane survived Charles. Ruth received
½ of his estate and Jane received
½. Until Ruth went to court to have
herself named as Jane’s guardian, she
could not use Jane’s share for the child’s
support or education. Even then, she was
strictly limited by the law in what she
could do with Jane’s inheritance.
The failure to make a will can often
mean hardship and added expense for your
immediate family, and may benefit some
relative you may not even know.
The law leaves you free (unless you
have contracted otherwise) to give away your
property by will in whatever way you wish,
except that your spouse can renounce your
will and receive ½ of your estate if
you leave no descendant and 1/3 if you leave
one or more descendants.
Does it cost more to have a
No. When there is no will, an
administrator named by the court (rather
than an executor chosen by you) carries out
distribution of your estate according to the
law. The administrator has limited powers
and may need to get permission from the
court before he or she can do certain
things, like selling your house or other
property. The administrator must also pay
for certain expenses with any money or
property in your estate.
The cost of writing a will is usually
much cheaper than the expenses the
administrator has to pay if you do not have
a will. A carefully drawn will can also
often reduce taxes and other expenses.
If you make a will and name as executor
an individual whom you trust and have
confidence in, or a bank or trust company,
you may, if you wish, give your executor
broad powers to handle your estate without
getting court permission for each specific
action. All this will save money.
What is involved in settling an
Why must your estate go through court?
To give your creditors (people you owe money
or property to) and persons who believe that
they are entitled to share in your estate a
limited time in which to file their claims
against your probate estate. Unknown
creditors generally have a six month time
period to file a claim against your estate,
beginning on the date that your executor
publishes notice to the unknown creditors
that your probate estate has been opened.
These legal requirements protect your
beneficiaries. In most cases, estates worth
over $100,000 go through probate whether or
not there is a will.
Is there a substitute for a
No. No other form of property
ownership or contract right is an adequate
substitute for a will.
If two or more persons own property
together in joint tenancy and one person
dies, the property will pass automatically
to the survivor(s) independently of the
provisions of any will and without court
administration. However, even if virtually
all of your property is in joint tenancy,
only a will can assure that other property
owned by you in your name alone will pass to
those you intend to benefit. If joint
tenancy property becomes your property alone
because the other joint tenant dies before
you, the amount of property subject to
disposition by your will could be
substantial. There also are tax hazards to
joint tenancy that most people do not know
Illinois has new instruments which can
also transfer property upon the death of an
owner, but each form of instrument has
advantages and disadvantages.
A trust agreement can provide for the
distribution of trust property on your death
independently of a will and without probate.
However, even if most of your property is in
trust, you should have a will to dispose of
any other property owned alone by you at
death that has not been transferred to your
Life insurance, Individual Retirement
Accounts (IRA’s), pensions and employee
benefits will pass to the beneficiary named
by you in those account records regardless
of the existence of a will without the
necessity of going through the court.
However, if all the beneficiaries of your
insurance policy, pension plan or employee
benefits should die before you do, a will
normally determines who will receive the
amounts to be paid out by these policies or
Also note that while these assets may be
transferred outside the estate, for the
purpose of assessing the inheritance tax and
estate tax, these assets may be considered
part of the estate.
A will can include provisions to assist
your executor gain access to your internet
and email accounts. Your facebook or
photo storage site may be the only places
your loved ones may have to preserve your
memories. Of course you can make the
process smoother by providing a list of
accounts and passwords. In a day when
many financial institutions do not mail
monthly or quarterly statements, your
executor may not know where to find your
assets. Keeping a list of the accounts
in your safety deposit box can help your
estate locate your assets.
Can a will be changed?
Most of the time. At any time you wish,
unless you have made a contract otherwise, you
may revoke or destroy your will and make a new
one, or you may change the provisions of your
will with an amendment called a “codicil.” A
codicil must be executed in the same manner as
When should a will be changed?
Ordinarily under Illinois law:
- a child born or adopted after the
will has been made (unless provided for in
the will) is entitled to the same share
the child would get if there were no will.
- divorce or dissolution of marriage
revokes a will as to all provisions for
the spouse but the other provisions remain
- marriage does not revoke a will but
it represents such an important change of
status that it is advisable to review your
A will should be reviewed from time to
- after the death of a family member,
- a change of residence,
- the acquisition or disposal of
property or a business,
- when the executor dies or leaves the
- when the witnesses are no longer
Since Federal and Illinois death tax
laws change from time to time, you should
have your will reviewed by an attorney
periodically to analyze whether your will
should be updated.
Planning your will
Nobody likes to think about their own
death and many people avoid writing a will
because they do not want to be reminded that
they will die. To be sure that your
children will be taken care of and that your
money and other property will be given to
the people you want to give it to after you
die, you should have a will.
An estate lawyer can assist you in
coming up with a plan and then preparing all
of the documents needed to carry out your
plan and make sure that your will meets all
of the legal requirements. It is dangerous
to use a pre-printed form of a will or a
trust instead of a properly written document
that applies to your particular situation.
Here is a check list of some of the items
you should discuss with your lawyer when you
plan your will:
- personal effects
- special bequests
- real estate
- life insurance
- minors and guardians for minors
- trusts and custodianships
- joint tenancies
- IRA’s, pensions and employee benefits
Can a will direct my doctor to
“pull the plug”?
Illinois law allows you to sign a
document called the Illinois Statutory Short
Form Power of Attorney for Health Care
(“Health Care POA”). This document, which is
completely separate from a will, provides
you with the opportunity, while competent,
to name a family member, friend or other
person (called an “agent”) to make medical
decisions for you if you are unable to make
and communicate decisions for yourself at a
later date. Those decisions may include
withholding or withdrawal of life sustaining
procedures. The Health Care POA also allows
the agent to choose whether to donate your
organs and make burial arrangements.
If you do not have a Health Care POA,
Illinois law also allows you to have a
“Living Will,” which is limited in scope and
tells your doctor your desires as to life
sustaining procedures should you have an
incurable and irreversible injury where
death is imminent without death delaying
Where there is no Health Care POA or
Living Will, the Health Care Surrogate Act
allows your guardian, certain family members
or close friends (if there are no family
members) to make medical treatment decisions
where you are unable to make decisions for
You should talk with a lawyer to make
sure you understand your options regarding
health care decisions and end-of- life
Illinois has recently added new forms
of the Power of Attorney.
What is the Power
of Attorney for Property?
The Power of Attorney for Property is
allowed under Illinois Law. It allows
a person you select to manage your finances
or sell your property if you become
disabled. With your attorney's help,
you can select the person, the circumstances
when the power becomes effective, what
powers the person will have, how the powers
are limited, and when the powers
expire. Without this document, a
person interested in your situation must
file a petition in court to appoint himself,
herself, a family member, a private trustee
or the government guardian, to be the
guardian of your assets. The court
must find by clear and convincing evidence
presented by a doctor that you are incapable
of managing your estate. This court
proceeding can be expensive and entails
court fees, fees for the doctor's report,
attorneys fees, bonding costs, guardian ad
litem costs, and reporting costs.
Creating a Power of Attorney before the
situation arises can prevent these costs as
well as the delay from a legal proceeding.
Should an attorney prepare a
A trusted attorney should guide you through
the analysis whether a living trust is
appropriate for you.
For Frequently Asked Questions about Living
Trusts, click here- Living Trusts FAQ
|This FAQ, based on
Illinois law, was issued to give you
some general advice about the law. It
is not intended as legal advice about
any particular problem. If you have a
question about the law, you should
consult a lawyer.
Some portions of this page were based on a
public service pamphlet by the Young Lawyers
Section of The Chicago Bar Association and
© Copyright 2005 The Chicago Bar
The other portions are copyrighted by Frank
IRS Circular 230 Disclosure
To ensure compliance with requirements imposed
by the IRS, we inform you that any U.S.
federal tax advice contained in this
communication (including any attachments) is
not intended or written to be used, and cannot
be used, for the purpose of (i) avoiding
penalties under the Internal Revenue Code or
(ii) promoting, marketing or recommending to
another party any transaction or matter
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1515 N. Harlem
Ave., suite 205
Oak Park, Illinois 60302
telephone: (708) 848-3663, 848-3662
fax: (708) 848-0219