What a will does in Illinois, and what it does not

A will is the document in which you say who receives your probate property, who manages your estate as executor, and who should raise your minor children. Illinois law fills each of those gaps on its own if you leave no will, and it fills them with defaults that fit few families. This article sets out the Illinois will requirements in the Probate Act of 1975 (755 ILCS 5), what happens without a will, how a will is changed, and what happens to it after a death. Our wills attorney page describes how we draft and sign one; the estate planning hub shows where the will fits in the rest of the plan.

A will does four things well:

  • Distributes probate assets. Everything in your sole name with no beneficiary designation passes under the will: a house titled to you alone, a bank account with no payable-on-death form, a car, furniture and personal effects.
  • Names the executor. The person who files the will, opens the estate, pays debts and taxes, and distributes what is left. A will can also waive the executor's bond and direct independent administration, which keeps the court at arm's length.
  • Nominates a guardian. A parent whose rights have not been terminated may designate, in a will or any other writing, the guardian of a minor child's person and estate. The designation must be witnessed by two credible adults, neither of whom is the person named, and if it is executed and attested like a will it has prima facie validity, so the judge starts from your choice (755 ILCS 5/11-5(a-1)).
  • Directs digital assets. Under the Revised Uniform Fiduciary Access to Digital Assets Act (755 ILCS 70), a will can authorize your executor to access online accounts and their contents. A setting you made with the provider itself, such as a legacy contact, controls over the will, so the two should agree.

Three things a will does not do:

  • It does not avoid probate. A will is the document that gets probated. If you own real estate in your sole name, or more personal property than the small estate affidavit allows, someone must open a case to carry the will out. Avoiding probate takes a funded revocable trust, joint ownership, beneficiary designations or a transfer on death instrument. Our article on how long probate takes in Cook County describes the process a will starts.
  • It does not control assets with a beneficiary form. Life insurance, retirement accounts, POD and TOD accounts, and property held in joint tenancy or in a trust pass outside the will, whatever the will says. See beneficiary designations and your Illinois estate plan.
  • It does not reduce estate tax by itself. A will directs property; it does not shelter it. The tax section below explains what does.

The requirements for a valid will in Illinois

The Probate Act sets four requirements, and they are short.

  1. Age and capacity. The person making the will (the testator) must be at least 18 and of sound mind and memory (755 ILCS 5/4-1(a)). Sound mind means the ability to know what you own, who your family is, and what the document does. It is not a high bar, and a person with a diagnosis can meet it. A will signed after January 1, 2016 by a person a court has adjudicated disabled is presumed void if the court appointed a plenary guardian, or a limited guardian with a finding of no testamentary capacity. The presumption is overcome only by clear and convincing evidence of capacity at the time of signing (755 ILCS 5/4-1(b)).
  2. Writing. The will must be in writing (755 ILCS 5/4-3(a)). Typed or handwritten makes no difference. What Illinois does not accept is an oral will, or a handwritten will with no witnesses. A "holographic" will that would be valid in some other states is valid here only if it was witnessed like any other.
  3. Signature. The testator signs it, or someone else signs at the testator's direction and in the testator's presence (755 ILCS 5/4-3(a)).
  4. Two credible witnesses. The will must be attested in the testator's presence by two or more credible witnesses (755 ILCS 5/4-3(a)). Credible means competent to testify, and in practice it means disinterested. If a witness, or the witness's spouse, receives a gift under the will, that gift is void unless two other witnesses also signed. The witness still takes whatever share they would have received had there been no will (755 ILCS 5/4-6(a)). Do not have a child, a spouse or anyone named in the will serve as a witness.

Notarization is not required. The belief that an Illinois will "must be notarized" is a common misunderstanding. What a notary signs is the self-proving affidavit. It is a statement of the two witnesses, signed at or after the attestation, that they saw the testator sign or acknowledge the will, that they signed in the testator's presence, and that they believed the testator to be of sound mind and memory (755 ILCS 5/6-4(b)). With it attached, the court admits the will on the paper alone. Without it, the executor has to find the witnesses, possibly decades later, and obtain their testimony or a fresh affidavit (755 ILCS 5/6-4(a)). A well-drafted will carries the affidavit, which is why there is usually a notary in the room. The will is valid without one.

Electronic wills. The Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act (755 ILCS 6) allows a will to be signed electronically and witnessed over audio-video communication, with its own rules on verifying identity and on where the witnesses may be. It is lawful. The paper original, signed with two witnesses in the same room and a self-proving affidavit attached, is still what the Cook County Probate Division clerk expects.

Signing day: how it is done properly

  1. The testator reads the will, or has it read aloud, and confirms it says what they intend.
  2. Two witnesses who take nothing under the will are in the room with the testator at the same time.
  3. The testator signs, or acknowledges an earlier signature, in front of both witnesses. Initialing each page is customary, not required.
  4. Each witness signs the attestation clause in the testator's presence.
  5. The witnesses sign the self-proving affidavit before a notary.
  6. The original goes where the executor can find it. Illinois has no public will registry today; a home safe the executor can open, or the drafting attorney's file, is the usual answer. From January 1, 2027, a circuit clerk may offer an optional will depository for a fee of up to $25 (705 ILCS 105/16.2, added by P.A. 104-0719); check whether the Clerk of the Circuit Court of Cook County has opened one. Give the executor a copy and tell them where the original is.

What happens if you die without a will in Illinois

The intestacy rules in 755 ILCS 5/2-1 decide who takes your probate estate:

  • Spouse and descendants: one-half to the spouse and one-half to the descendants, per stirpes (755 ILCS 5/2-1(a)).
  • Descendants, no spouse: everything to the descendants (2-1(b)).
  • Spouse, no descendants: everything to the spouse (2-1(c)).
  • Neither: the parents and siblings in equal parts, a surviving parent taking a double share if the other parent has died (2-1(d)); then grandparents and their descendants, and so on down the family tree.

Some states give a surviving spouse a fixed sum off the top before dividing the rest. Illinois does not. A spouse with children takes one-half, and a minor child's share goes into a court-supervised guardianship estate that pays it over, in full, at 18. Unmarried partners, stepchildren who were never adopted, and charities receive nothing. The court chooses the administrator, who may have to post a bond.

Changing or revoking a will

Under 755 ILCS 5/4-7(a), a will is revoked in only four ways. The testator, or someone acting at the testator's direction and in their presence, burns, cancels, tears or obliterates it. A later will declares the revocation. A later will is inconsistent with the earlier one, which revokes it to that extent. Or a signed and attested instrument declares the revocation. Writing changes on the original does nothing. Small changes are made by a codicil, signed and witnessed exactly like a will; larger ones by a new will that expressly revokes the old one.

Marriage does not revoke a will. Older Illinois cases said otherwise, and the belief persists. Under the Probate Act of 1975, no will or any part of it is revoked by a change in the testator's circumstances or marital status. The one exception is divorce. A judgment of dissolution or a declaration of invalidity revokes every legacy, interest, power of appointment and fiduciary nomination in favor of the former spouse, and the will is read as though the former spouse had died first (755 ILCS 5/4-7(b)). A new spouse's protection is the renunciation right described below, not revocation. Marriage, divorce, a birth or adoption, a death in the family, a move, a business sale: each is a reason to re-read the will, not a reason to assume the law fixed it.

A will that was totally revoked is not revived by tearing up the later one. It has to be re-executed, or revived by a signed and attested instrument (755 ILCS 5/4-7(c)).

After death: filing, admission to probate, and contests

  • Filing. Whoever holds the original must file it with the clerk of the circuit court of the proper county immediately after the death (755 ILCS 5/6-1(a)). Willfully hiding a will for 30 days after learning of the death is a Class 3 felony (755 ILCS 5/6-1(b)). The Clerk of the Circuit Court of Cook County charges nothing to file a will, and filing it does not by itself open an estate.
  • Admission. The will is admitted when two attesting witnesses state, by testimony, attestation clause or affidavit, that they saw the testator sign or acknowledge it, that they signed in the testator's presence, and that they believed the testator to be of sound mind (755 ILCS 5/6-4). The court refuses admission only on proof of fraud, forgery, compulsion or other improper conduct.
  • Contests. Any interested person may petition to contest the will's validity within six months after it is admitted to probate (755 ILCS 5/8-1(a)). The usual grounds are lack of capacity, undue influence, fraud, forgery, improper execution and revocation. The contestant goes first with proof; either side may demand a jury (755 ILCS 5/8-1(c)). The same six-month window applies to a challenge to a revocable trust that the will pours into (755 ILCS 5/8-1(f)). After six months the will stands.
  • The spouse's election. A surviving spouse who is left out, or left too little, may renounce the will within seven months after it is admitted (755 ILCS 5/2-8). The spouse then takes one-third of the estate if there are descendants, one-half if there are none. This is the right that a prenuptial or postnuptial agreement can waive.
  • Small estates. For a death on or after August 15, 2025, a probate estate of personal property only, worth $150,000 or less not counting motor vehicles, can be settled without opening a case. The will is carried out with a small estate affidavit under 755 ILCS 5/25-1.

Taxes: what a will changes and what it does not

Illinois has no inheritance tax; nothing is taxed to the person who receives it. Illinois does have an estate tax, with an exclusion amount of $4,000,000 that is not indexed for inflation (Illinois Estate and Generation-Skipping Transfer Tax Act, 35 ILCS 405/2). The federal basic exclusion amount for a death in 2026 is $15,000,000 (IRS estate tax tables). Our article on the Illinois estate tax exemption covers who pays and how the tax is computed.

A will does not shelter anything from either tax. What moves the number is what happens during life and in the drafting: lifetime gifts, the marital deduction, an irrevocable trust to own life insurance, and charitable gifts. For a married couple, a credit-shelter or disclaimer trust makes sure both $4,000,000 exclusions are used, because the Illinois exclusion is not portable between spouses. A will can create a testamentary trust that does some of this at death, but the planning that saves tax is done before. That is the part of the work where it matters that the lawyer drafting the will is also the CPA reading the balance sheet; see our attorney-CPA page.

Income tax works in the heirs' favor. Most inherited assets take a new basis equal to date-of-death value (26 U.S.C. 1014), so a child who sells the family home soon after death owes little or no capital gains tax. Retirement accounts do not get that step-up and are taxed as the money comes out.

Types of wills Illinois lawyers draft

Most Illinois wills take one of three forms: a simple will, which gives everything outright and names an executor and a guardian; a will with a testamentary trust, which holds a minor's or a vulnerable beneficiary's share in trust after death instead of paying it over at 18; and a pour-over will, the companion to a revocable living trust, which sends anything left outside the trust at death into it. Our trust attorney page covers when a trust should do the distributing.

Whichever form, the will is one document in a plan that also includes a power of attorney for property and for health care, beneficiary designations that match the will, and for many homeowners a transfer on death instrument.

Before you call: a short checklist

  1. List what you own and how it is titled: sole name, joint, trust, beneficiary form.
  2. Decide who receives what, and what happens if a beneficiary dies before you.
  3. Choose an executor and a backup, and ask them.
  4. If you have minor children, choose a guardian and a backup, and decide whether the same person should manage the money.
  5. Gather deeds, account statements, insurance policies and any existing will or trust.
  6. Note the events that should trigger a review: marriage, divorce, births, deaths, a business, a move out of Illinois.

Frequently asked questions

Does a will have to be notarized in Illinois?

No. A will is valid when it is in writing, signed by the testator and attested by two credible witnesses (755 ILCS 5/4-3). The notary signs the optional self-proving affidavit under 755 ILCS 5/6-4, which lets the court admit the will without calling the witnesses.

Can I write my own will in Illinois?

Yes. A handwritten or form will that meets the four requirements is valid. The risk is content, not validity: a form that leaves a house to a minor, forgets the residue, names a witness as a beneficiary, or contradicts the beneficiary form on a retirement account creates a problem the family finds after you are gone.

Who cannot be a witness to a will in Illinois?

Anyone who receives a gift under the will, or whose spouse does, should not witness it. The gift to that person is void unless two other witnesses signed (755 ILCS 5/4-6). Witnesses must be able to testify, so use adults who are not named in the document.

How long do you have to contest a will in Illinois?

Six months after the will is admitted to probate, not six months after the death (755 ILCS 5/8-1(a)). Any interested person may file the petition, which usually means an heir who would take more without the will or a beneficiary under an earlier will. The usual grounds are lack of capacity, undue influence, fraud, forgery, improper execution and revocation, and the contestant carries the burden of proof. After six months the will stands even if the ground was real. A surviving spouse's separate right to renounce the will runs seven months from admission (755 ILCS 5/2-8).

Does getting married or divorced cancel my will in Illinois?

Marriage does not. A will signed before the wedding stays in force, and the new spouse's protection is the right to renounce it and take a one-third or one-half share (755 ILCS 5/2-8). Divorce revokes the provisions in favor of the former spouse and treats the former spouse as having died first; the rest of the will stands (755 ILCS 5/4-7(b)). Neither event rewrites the rest of the document, so a will that still leaves everything to a child from a first marriage, or names a former in-law as executor, does exactly that. Review the will after either event.

Does a will avoid probate in Illinois?

No. The will is what gets probated. If you own real estate in your sole name, or more than $150,000 in personal property, the executor must open a case in the circuit court to carry it out. Probate is avoided by a funded revocable trust, joint ownership, beneficiary designations and transfer on death instruments, with a will as the backstop for whatever those miss. A will can make the probate case easier, by waiving bond and directing independent administration, but it cannot skip it.

General information as of March 12, 2025, revised October 5, 2026; not legal advice; laws change; consult a lawyer about your situation.