Estate Planning Resources FAQs
What is a will?
A Will is simply a set of instructions for what happens to the things you own when you die. You can leave your assets (money, real estate and personal possessions) to people (such as family members, friends or other loved ones) or to entities such as a church, university or a charitable organization that is important to you. In a Will, you can nominate someone to be responsible for settling your estate, this person is called an executor or personal representative.
What happens if I die without a will?
When someone dies without a Will, then state law dictates who inherits your money and possessions, which may not be who you want to inherit. In Illinois, this means that if you are married with children, your spouse and children inherit your assets, half to your spouse and the other half divided equally among your children. Click here to read the Illinois statute. If you are not married and have no children, then your next closest relatives inherit, such as parents and siblings.
Can I just write out instructions or a letter and sign it?
A handwritten Will in Illinois may be valid if it meets all of the other legal requirements for Wills. However, written instructions that are just signed (called a holographic will) are not legally enforceable, so your assets would be distributed according to state law, just as if you had died without a Will.
If I die, who decides what happens to my minor children?
If you have a Will that nominates a guardian for your children, it is very likely the Court will name that person to be the guardian. If you have no Will, then the Court will decide who will be the guardian for your children. If several people want to be the guardian, it could result in an expensive legal battle.
What is a guardian?
A guardian is someone appointed by a Judge during a court proceeding to make health care and financial decisions for someone who cannot make their own decisions. Children under the age of 18 need guardians if their parents are deceased or unable to make decisions, and so do adults that are disabled or incapacitated.
What is a Health Care Power of Attorney?
A Health Care Power of Attorney is a document that lets you name someone that can make health care decisions for you if you are unable to make your own decisions. The person you appoint (called an agent) can talk to your doctor, review medical records and test results, authorize treatment, select a hospital or long term care facility, and make a decision about whether to maintain or withdraw life supporting measures. The health care agent also has the ability to authorize an autopsy or organ donation and to decide the final disposition of your remains.
What is an Advance Directive for Health Care?
An advance directive is a written statement that expresses your wishes about health and medical decisions if you are not be able to make them yourself. You must be 18 or older to sign an advance directive.
There are four types of advance directives under Illinois law: a Health Care Power of Attorney; a Living will; a Mental Health Treatment Preference Declaration, and a Do-Not-Resuscitate/Practitioner Orders For Life-Sustaining Treatment (DNR/POLST).
Federal law requires that you be told of your right to make an advance directive when you are admitted to a health care facility, and the Patient Self-Determination Act requires certain providers participating in the Medicare and Medicaid programs to furnish patients with information on advance directives. More information on the Patient Self-Determination Act can be found here.
What is a Living Will?
A Living Will isn’t really a Will at all, it is a written expression of your wishes regarding life sustaining treatments or life support. In Illinois, a Living Will is only effective if you are terminally ill and have less than a year to live. Two physicians must certify that you are terminally ill.
What is a Do-Not-Resuscitate/Practitioner Order for Life Sustaining Treatment (DNR/POLST)?
A DNR/POLST Order is an advance directive that expresses your wishes about what should be done if your heart stops or you stop breathing. For example, whether or not cardiopulmonary resuscitation (CPR) can be used if your heart stops. If you have a pulse and are breathing, it states your desires for life-sustaining treatment and medically administered nutrition.
In 2015, a new DNR/POLST form went into effect in Illinois and it is available here in English or Spanish. This document requires your signature (or that of your authorized legal representative such as a guardian or health care agent), the signature of your attending medical practitioner, and a witness who is 18 years of age or older. A DNR/POLST Order will not be effective unless it contains all of the required signatures. Answers to other common questions about the POLST form and more information can be found here.
What is the difference between a Living Will and a DNR/POLST?
A living will only applies when you have a terminal condition and is specific only to life-sustaining treatment. Two physicians must certify that you have a terminal condition. A Do-Not-Resuscitate/Practitioner Order for Life Sustaining Treatment (DNR/POLST) includes whether or not cardiopulmonary resuscitation (CPR) can be used and what types of life-sustaining treatment can be administered. A DNR/POLST must be signed by you, a health practitioner, and a witness and does not require additional physician approval to be effective.
What is a Mental Health Treatment Preference Declaration?
A Mental Health Treatment Preference Declaration is an advance directive for mental health treatment. While you are healthy, you can decide what medication and treatments you want administered if you become ill. You can also indicate a preferred doctor to be contacted. This directive can only be revoked or modified if a physician says you are healthy enough to make that decision.
What if I do not have a health care advance directive?
If you have not signed a health care power of attorney and you cannot make your own decisions, it might be necessary for someone to go to court and ask a judge to appoint a guardian for you. The person appointed may or may not be the person you want to make those decisions for you.
What is a Durable Power of Attorney?
A Durable Power of Attorney, also known as a Power of Attorney for Property, allows you to name someone to make financial and legal decisions for you if you are unable to make your own decisions. When used as part of an estate plan, these documents are generally broad in scope to address anything to do with money or property. The Durable Power of Attorney is only good as long as you are alive. This document can also be used to appoint someone only for a short period of time and be very narrow in scope. For example, if you are buying a house and cannot attend the closing, you can appoint someone to sign the closing documents for you.
What if I do not have a Durable Power of Attorney?
If you have not executed a Durable Power of Attorney and you cannot make your own decisions, it might be necessary for someone to go to court and ask a judge to appoint a guardian for you. The person appointed may or may not be the person you want to make those decisions for you.