Why execution is everything
Execution, the signing ceremony at the end of the document drafting process, is where an estate plan becomes legally binding. A perfectly drafted will with a procedurally defective execution is invalid. Courts cannot overlook missed witnesses or a wrong notarization.
Each document type has different requirements, and Illinois's requirements differ from other states. Estateur generates state-specific execution instructions with every document set.
Will execution in Illinois
Under 755 ILCS 5/4-3, a valid Illinois will requires:
- You (the testator) must sign the will at the end. If you're physically unable to sign, you may direct someone else to sign in your presence.
- Two competent witnesses must sign in your presence and in each other's presence.
- Each witness must have observed your signature (or your direction for another to sign).
- The witnesses must sign at your request, not simply in your presence.
Witnesses do not need to know the contents of the will. They are attesting to your capacity and to the signing procedure, not to the document's wisdom.
Avoid naming beneficiaries as witnesses. While Illinois allows it, a beneficial witness's gift may be voided or reduced if the will is contested.
Self-proving affidavit
Immediately following the witness signatures, most Illinois wills include a self-proving affidavit. This is a sworn statement signed before a notary by both the testator and the witnesses, attesting to the validity of the execution.
The affidavit makes probate easier: it allows the will to be admitted without requiring witnesses to appear and testify. Without it, if a witness has died, moved away, or become unavailable, probate becomes significantly more complicated.
Trust execution
A revocable living trust does not require witnesses under Illinois law, but it should be notarized, especially if it includes or will hold real estate. The trust is signed by the grantor (you) and the initial trustee (also you, typically), and acknowledged before a notary.
Financial Power of Attorney execution
Under 755 ILCS 45/2-5, an Illinois Financial Power of Attorney must be signed before two witnesses and acknowledged before a notary. The agent named cannot serve as a witness. The witnesses cannot be your agent's relatives.
Illinois law also requires specific "Notice to Agent" and "Notice to Principal" language, a statutory form that must appear verbatim in the document.
Healthcare Directive execution
An Illinois Healthcare Power of Attorney (755 ILCS 45/4-10) requires your signature and two witness signatures. The witness exclusions are strict: a witness cannot be your healthcare agent, an heir or beneficiary, a healthcare provider, or an employee of a healthcare facility.
Unlike many other documents, Illinois's Healthcare POA does not require notarization, but best practice is to have it notarized anyway for out-of-state recognition.
After execution: what to do with originals
- Keep original wills in a secure but accessible location, not a bank safe-deposit box, which may be sealed at death
- Give copies to your executor and healthcare agent (tell them you have a will; where to find it; who your attorney is)
- File your trust document with your county recorder if it holds real estate
- Keep copies of powers of attorney on file with your financial institutions and your primary physician
- Store a copy in your Estateur vault