A guide to wills in IllinoisWills in Illinois

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

Read this first: ① In Illinois, a will must be in writing, signed by the testator, and attested in the testator's presence by two or more witnesses (755 ILCS 5/4-3); a will written entirely in your own hand with no witnesses does not meet this requirement. ② Do not have a beneficiary of the will, or a beneficiary's spouse, serve as a witness. ③ Without a will, your property is distributed in the order set by statute, which may not match your wishes, and you cannot name a guardian for your minor children. ④ Joint accounts, insurance and retirement accounts with named beneficiaries, and similar assets are generally not governed by your will. ⑤ Whether real estate and deposits in China can be handled under a U.S. will is a question for a lawyer licensed in China.

A will (the formal document is often called a last will and testament) is a written plan for how your property will be distributed after your death, who will handle your estate, who will care for your minor children, and similar matters. Wills are a matter of state law: the formal requirements, intestate succession rules and probate procedures differ from state to state. This page focuses on the Illinois Probate Act of 1975 (755 ILCS 5).

Many families think, "We don't have much property, so we don't need a will," or "Whatever one spouse owns naturally goes to the other." In fact, without a will a surviving spouse may not inherit everything, and for families with minor children a will is the most direct way to name a guardian. Families with property in both China and the United States also need to consider estate tax and the coordination of cross-border assets (see Estate planning for cross-border families).

Requirements for a valid will

Who can make a will

Under 755 ILCS 5/4-1, a person who is 18 years of age or older and of sound mind and memory may make a will. In general, the testator should be able to understand what property they have, who their close relatives are, and what arrangements they are making. Wills made by people who are elderly or ill are more likely to be challenged later for lack of capacity or undue influence, so the signing should be handled properly.

Formal requirements: in writing, signed, two witnesses

755 ILCS 5/4-3(a) provides that a will must be:

In writing;
Signed by the testator, or by another person in the testator's presence and at the testator's direction;
Attested by two or more credible witnesses in the presence of the testator.

Illinois does not require a will to be notarized to be valid. A properly prepared will usually includes an attestation clause in which the witnesses confirm that the testator signed in their presence, was of sound mind at the time, and so on; this makes it much easier to prove the will's validity at probate. A "holographic will" (handwritten by the testator and not witnessed), recognized in some states, does not satisfy the Illinois witness requirement. An "international will" that complies with the Uniform International Wills Act is treated as meeting the requirements above (4-3(b)).

Beneficiaries should not serve as witnesses

Under 755 ILCS 5/4-6, if a witness or the witness's spouse is a beneficiary under the will, and without that witness there are not enough other witnesses to meet the legal requirement, the gift to that witness (or spouse) is void; the witness can take at most the share they would have received if the will were not established. The simplest approach is to use adult witnesses who have no interest in the will, and to have more than the minimum number.

Electronic wills and remote witnessing

In 2021 Illinois enacted legislation on electronic wills and remote witnessing (P.A. 102-167, effective July 26, 2021, codified at 755 ILCS 6), now titled the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act. Key points:

A will may be made and signed in electronic form;
Witnesses may attest remotely by real-time audio-video communication, but must be physically located in the United States while witnessing and must confirm the testator's identity; a remotely witnessed will must state that Illinois is the place of execution (755 ILCS 6/15-10);
If separate signature pages are used, the witnesses' signature pages must be attached to the document the testator signed within 10 business days after the attestation.

As a result, relatives and friends who are in China or another country cannot serve as remote witnesses. Remote procedures involve many details, and to reduce the risk of later disputes we still recommend in-person signing and in-person witnessing in most cases.

Without a will: intestate succession

If a person dies without a valid will (intestate), the estate is distributed in the order set out in 755 ILCS 5/2-1, summarized below:

Family situation at death	Distribution (755 ILCS 5/2-1)
A spouse and children or other descendants	Spouse takes 1/2; descendants together take 1/2 (by representation, per stirpes)
Descendants but no spouse	Everything to the descendants (per stirpes)
A spouse but no descendants	Everything to the spouse
No spouse and no descendants	Parents and siblings (and descendants of deceased siblings) share equally; if only one parent is living, that parent takes a double share
None of the above	In turn, to the grandparents' generation and their descendants, the great-grandparents' generation and their descendants, then the nearest kindred
No known relatives	To the county or the state (escheat)

In a family with children, a spouse receives only half when there is no will; if the children are minors, their shares usually also require the court to establish a guardianship of the estate to manage them, and the children may use the money freely once they reach adulthood. This is one of the main reasons families with children should have a will or trust.

Naming a guardian for minor children

Under 755 ILCS 5/11-5, a parent whose parental rights have not been terminated may, in a will or other written document, designate a guardian of the person, a guardian of the estate, or both, for a minor child:

The designation must be attested by two or more credible witnesses aged 18 or older, and the person designated cannot be a witness; a designation signed and witnessed in the manner of a will has prima facie validity;
The designation does not affect the rights of the other parent: if the other parent is living, has not had parental rights terminated, and is willing and able to care for the child, the court generally will not appoint a separate guardian;
The court decides based on the child's best interests, and the parent's designation is an important factor; a child aged 14 or older may nominate a guardian, subject to the court's approval.

When an international family names a guardian, consider whether the person lives in the United States and can care for the child over the long term; if you plan for grandparents in China to care for the child, the child's immigration status, schooling and travel all need to be planned in advance. We recommend also naming a backup guardian and placing the children's property in a trust (see Living trusts).

Overview of the probate process

Probate is the court-supervised process of confirming a will's validity, appointing an estate representative, paying debts and distributing the estate. It is handled by the circuit court of the county where the decedent resided, such as the Probate Division of the Circuit Court of Cook County. The usual steps are:

File the original will: whoever holds the will should deliver it to the clerk of the court of the proper county promptly after the testator's death (755 ILCS 5/6-1); willfully concealing a will for 30 days after learning of the death can be a felony.
Petition for probate and obtain letters of office: the executor petitions to admit the will to probate and, once approved, receives letters of office; if there is no will, the court appoints an administrator.
Notify heirs and legatees, publish notice as required by law, and notify known creditors to file claims.
Claims period: the deadline is at least 6 months after the first publication and at least 3 months after notice is mailed to known creditors, whichever is later (755 ILCS 5/18-3).
Administer the estate: prepare an inventory, collect the assets, and pay funeral expenses, administration expenses, debts and taxes.
Distribute and close the estate.

Illinois distinguishes between "independent administration" and "supervised administration." Under independent administration, many matters do not need to be approved by the court one by one; when an interested person objects or the estate is in dispute, the court becomes more involved. The time and cost vary widely depending on the complexity of the estate and whether there is a dispute.

Property that does not go through probate

A will governs only "probate assets." The following generally pass directly under their own arrangements:

Real estate or accounts held in joint tenancy with right of survivorship;
Bank or brokerage accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation;
Life insurance, 401(k)s, IRAs and other assets with named beneficiaries;
Property already transferred into a living trust;
Real estate covered by a transfer on death instrument (TODI) executed and recorded during life under the Real Property Transfer on Death Instrument Act (755 ILCS 27).

When you make a will, also check that the beneficiary designations on each account are consistent with it. Forgetting to update beneficiaries after a divorce or remarriage is a common source of disputes.

Small estate affidavit

When an estate is small, the property can be collected and distributed with a small estate affidavit instead of formal probate (755 ILCS 5/25-1). Under P.A. 104-346 (effective August 15, 2025), for people who die after that date the threshold is: a total personal estate of no more than $150,000, excluding motor vehicles registered with the Secretary of State (previously $100,000), with no letters of office issued and no petition for letters pending, among other conditions.

Note that the affidavit applies only to personal estate, not to real estate, and the affiant is liable to anyone who suffers a loss in reliance on the affidavit. Another amendment (P.A. 104-624), effective January 1, 2027, provides that certain vehicles, such as recreational vehicles and commercial vehicles, will no longer be excluded from the $150,000 calculation. This section has been amended several times in recent years; before using it, check the current statute and your county court's forms.

Foreign nationals and property in China

When a foreign national who does not live in the United States owns real estate or other property in Illinois, that property usually also has to be administered in Illinois after death; when the decedent was domiciled in another state or country, this is often called ancillary administration. Whether a will made abroad can be admitted to probate in Illinois depends on the form of the will and the law of the place where it was signed. Making a separate will for U.S. property that meets Illinois requirements, or holding U.S. real estate through a living trust, can often make the later process much simpler. U.S. property of a nonresident alien may also be subject to federal estate tax, with an exemption far lower than for U.S. citizens and residents.

Conversely, a U.S. will can by its terms cover "property wherever situated," but whether real estate, deposits or equity interests in China can be transferred under that will depends on Chinese law and the requirements of the relevant authorities; our firm does not advise on Chinese law. A common approach is to make a U.S. will and a Chinese will, each covering the property in its own country, paying special attention to the revocation clause: if the standard clause in a new will "revoking all prior wills" is not limited, it may unintentionally revoke the will for the other country. See Estate planning for cross-border families.

When to update your will

Marriage: under 755 ILCS 5/4-7(b), a will is not revoked by changes in circumstances such as marital status, except for divorce or annulment — marriage does not automatically revoke a will made before the marriage, so review it after you marry;
Divorce: after a divorce or annulment, gifts to the former spouse in a will made before the divorce, and the nomination of the former spouse as executor, trustee and the like, fail as if the former spouse had died before the testator; beneficiary designations on insurance and retirement accounts must be changed separately;
Birth of a child: under 755 ILCS 5/4-10, a child born after the will is made, for whom the will neither provides nor shows an intent to disinherit, may take the share they would receive in intestacy, with the other gifts abated proportionally. It is better to update the will promptly and name a guardian;
Moves, changes in property or in the people named: moving to another state or country, buying or selling real estate, starting a company, or the death, change in relationship or move abroad of an executor or guardian are all reasons to review your will.

A will can be changed by making a new will or a codicil, either of which must be signed and witnessed with the same formalities as a will. Do not mark up the original, as that can lead to disputes over revocation or partial revocation.

New York and Massachusetts: different rules

David Wang is also licensed to practice in New York and Massachusetts. New York applies the Estates, Powers and Trusts Law (EPTL; the execution and witnessing requirements are in EPTL 3-2.1), and Massachusetts applies the Massachusetts Uniform Probate Code (MUPC, M.G.L. c. 190B). Both states differ from Illinois on witnessing procedures, electronic or remote signing, the spouse's elective share, small estate procedures and state estate tax. After a move, your existing will may well remain valid, but you should have a lawyer confirm whether it needs to be adjusted.

How we can help

Draft a will that meets Illinois (or New York or Massachusetts) requirements based on your family and assets, and arrange a proper signing and witnessing;
Design guardian designations and property-management arrangements for minor children;
Review how your real estate, accounts and insurance are titled and the beneficiary designations, so they are consistent with your will;
Help family members through Illinois probate or the small estate procedure;
Where property in China or another country is involved, coordinate with locally licensed lawyers and tax advisors.

Frequently asked questions

Does a will have to be notarized?

In Illinois, the legal requirements for a valid will are that it be in writing, signed by the testator and attested by two or more witnesses; notarization is not required. A proper attestation clause, however, makes probate go more smoothly later. If the will is to be used in China or another country, there may be additional notarization and authentication requirements.

Is a will template downloaded online valid once I sign it?

A template will can be valid as long as it meets the requirements of being in writing, signed and attested by two witnesses. The problem is that templates often do not address cross-border property, management of minor children's property, or a beneficiary dying before you. The more complex your family and assets, the more we recommend having a lawyer draft it.

If I have a will, does my family avoid court?

No. A will has to go through probate to be carried out. If you want your family to avoid probate as much as possible, consider a living trust, beneficiary designations, a TODI and similar arrangements.

Can my will leave nothing to one of my children?

In Illinois, children have no statutory forced share, so a will can leave nothing to a particular child, but it is best to state that intent clearly in the will to reduce disputes. A surviving spouse does have certain rights under the law, which must be assessed case by case.

I hold a green card or a visa. Can I make a will in the United States?

Yes. Making a will has nothing to do with immigration status; you only need to meet the age, capacity and formal requirements. Your status does, however, affect estate tax treatment; for example, when your spouse is not a U.S. citizen, the estate tax marital deduction is limited.