Transfer of Property Through a Will
A person who dies testate (with a will) has prepared a will indicating how her property should be handled.
Transfer of Property After Death — No Will
In contrast, when a person dies intestate (without a will), real estate and personal property pass to the decedent’s heirs according to the state’s statute of descent and distribution. In effect, the state provides a will for an intestate decedent.
Probate
Legally, when a person dies, ownership of real estate immediately passes either to the heirs by descent or to the persons named in the will. Before these individuals can take full title and possession of the propÂerty, however, the estate must go through the judicial process of probate, and claims against the estate must be satisfied.
In Illinois, when the owner of real estate dies, how title to the property was held (rather than the laws of descent and distribution or the presence of a will) may dictate who the new owners will be:
Transfer of Title by Will
A will is an instrument made by an owner to convey title to real or personal property after the owner’s death. A will is a testamentary instrument; that is, it takes effect only after death. This differs from a deed, which must be delivered during the lifetime of the grantor and conveys a present interest in property.
While the testator (the person who makes a will) is alive, any property included in the will can still be conveyed by the owner. The parties named in a will have no rights or interests as long as the party who made the will lives, they acquire interest or title only after the owner’s death. Only property owned by the testator at the time of her death may be transferred by will.
The gift of real property by will is known as a devise, and a person who receives property by will is known as a devisee.
The gift of personal property by will is known as a legacy or a bequest, and a person who receives the personal property by will is known as a legatee or beneficiary.
Probate
For title to pass to the devisee(s), state laws require that upon the death of a testator, the will must be filed with the court and probated. Probate is a legal procedure for verifying the validity of a will and accounting for the decedent’s assets. The process can take several months to complete.
Legal requirements for making a will
Any person 18 or older, who is of sound mind and memory, may make a will. A will must be in writing and signed and declared by the maker (the testator) in the presence of two or more witnesses to be her last will and tesÂtament. Witnesses cannot be beneficiaries under the will because their gifts will likely be voided by the probate court.
A codicil is a modification of, an amendment of, or an addition to a previously executed will and may be set forth in a separate document.
A holographic will is written in the testator’s own handwriting. A nuncupative will, such as a deathbed bequest, is given orally by a testator and is for personal property.
Illinois courts do not recognize holographic wills or nuncupative wills unless also witnessed by two people in each case.
Upon the death of a testator, the will must be filed and a petition for probate initiated in the circuit court of the county in which the decedent resided. For six months after the executor has been appointed and the decedent’s property has been inventoried, claims may be presented to the executor for debts owed by the deceased. On completion of probate, the executor’s final account is filed with the court and the executor is discharged. The real estate is considered free from debts, claims, or taxes of the decedent.
In Illinois, while an individual may freely disinherit children or other previously named heirs, a surviving spouse may not be disinherited by the decedent spouse.
A surviving spouse who is disinherited by the decedent has a statutory right to renounce the will and claim a share of the estate as follows:
