Drost Kivlahan McMahon
& O’Connor LLC
11 South Dunton Avenue
Arlington Heights, IL 60005-1475
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Office: 847.577.2227
Fax: 847.577.2204

What Is a Will?

A will (or “Last Will and Testament”) is the written declaration of a person’s intentions as to the disposition of his or her property taking effect at death. A will governs and distributes only property owned by the decedent individually. However, it may exercise a power of appointment if one exists. It names an executor (the person who will handle the financial affairs of your estate) and can name guardians for minor children, establish a testamentary trust, and waive expensive surety costs. A will is enforceable only at death and not before. Until your death, your will may be amended or revoked.  A will must be signed and witnessed (by at least 2 witnesses who are not legatees or otherwise named in the will) with certain legal formalities; otherwise, it will have no effect. This is important to recognize because many wills prepared and signed without professional assistance may be wholly ineffective or may otherwise have deficiencies.

A properly drawn will brings good order and sound distribution to one’s estate.

Why Would I Want or Need a Will?

You should make a will in order to:

• make certain the persons whom you really want to receive assets will actually get them, including beneficiaries and contingent beneficiaries (those who would receive the inheritance in the event the first named beneficiary does not survive you);

• make special gifts, both charitable and noncharitable;

• take advantage of tax-saving options;

• choose a personal representative, an executor (the person(s) who will handle the financial affairs of your estate);

• choose a guardian for minor children (the person(s) who will direct the personal and financial affairs of any minor children);

• avoid probate for minor children’s assets (by creating a testamentary trust for their benefit and avoiding an estate guardianship);

• delay the distribution of a child’s share of the estate to him or her until a later time (say, age 25 or 30, by creating a testamentary trust) when he or she is better able to manage wealth — otherwise, the child will receive his or her full inheritance at age 18 (in most states) after having been held in probate;

• lessen certain administrative problems and costs, such as waiving expensive surety costs on the executor’s and guardian’s bond (which easily exceeds the cost of preparing a simpler will), specifically directing equitable payment of certain debts and taxes, etc.;

• provide for special administration of unique assets (such as business interests);

• provide for special payment (outright or delayed) from the estate (creation of a testamentary trust);

• appoint your choice of long-term asset managers (trustees);

• provide appropriately for any special family situations and needs;

• appropriately disinherit a family member;

• reduce potential for intra-family conflict;

• review overall current situation and make certain lifetime goals are being pursued in the most direct and balanced way;

• exercise powers of appointment over which you are a donee; and

• make a final statement to your family and give your life’s testimonial.

Further, a more expanded approach to estate planning that goes beyond a will can accomplish even more, such as addressing;

• disability — personal health considerations and directives, and financial and property considerations and planning options;

• protection from creditors;

• installation of checks and balances for fiduciaries; and

• probate avoidance.

If your will is older than five years or you have had significant changes in your financial or personal life, have your will reviewed.

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