WILLS, LIVING WILLS
AND DURABLE HEALTH CARE POWERS OF ATTORNEY
Why You Should Have a Will
Letters of Office
Durable Health Care
Powers of Attorney
People make Wills for various reasons. Some
considerations include saving on estate taxes, to give
direction covering burial arrangements, to disinherit
someone, to leave family heirlooms to someone, to
establish trusts for relatives who cannot manage money,
and to provide for guardianship of minor children or
dependent adult children. People who own their own
business can provide for the continuation of that
business through a Will.
You Should Have a Will
It is important that everyone has a will. Without a
will the laws of Illinois determine who gets your
property. If you die without a will the Illinois law
requires that your estate
no children - spouse gets everything.
there are children - spouse gets one-half and children
share in the remaining one-half of the estate.
spouse - children share equally in the estate.
no spouse or children - parents and siblings share with
parents getting a double share.
none of the above - nieces and nephews share equally.
none of the above - grandparents or the descendants
none of the above - nearest relative inherits the entire
none of the above - the State of Illinois receives the
Probate is the legal system in which assets in the
deceased person's name alone are gathered, debts are paid
and then the remaining monies are distributed to the
heirs if no will, or to the devisees if there is a will.
This is done under the supervision of a judge. Small
estates (less than $50,000) can be distributed without
court supervision. The probating of an estate may be
public record, unless unsupervised administration is
permitted by all the people taking under the
There are ways to avoid probate. If all property is
held in joint tenancy the property passes to the
surviving joint tenant outside of the probate estate.
Some caution must be taken here to avoid tax
A living trust can also be a means to avoid probate.
It is private - there is no public record. All property
is placed in a trust and upon the death of the grantor,
the property passes to the named beneficiaries. Again
caution is needed. If some property is not put into the
trust, it will need to be probated. A Will may be needed
to put all remaining property into the trust. If it is a
revocable trust, you keep control over the property but
estate taxes will have to be paid. If it is an
irrevocable trust, you will have no control over the
property but there may be less or no estate tax upon your
If you do not have a Will the court will appoint an
administrator, order the sale of all property, or order
the sale of the business. Your spouse may have to go into
court every year to account for how the money was spent.
When your children turn 18 years of age, they can do
whatever they want with the money. If your spouse
remarries, the new spouse may end up inheriting your
You can write your own Will, but you must be careful.
There are numerous technicalities that must be
Videotaped Wills are not acceptable in Illinois, but
they can be used to show that the person was competent at
the time the Will was made.
A Will can be revoked at any time. A new Will can be
made or a codicil executed to add to or change the Will.
Because tax laws change and people change a Will should
be reviewed approximately every five (5) years.
As medical technology becomes more advanced, it
becomes possible to keep more people alive longer by
artificial means, even when there is no quality of life.
Illinois Law is now attempting to keep up with medical
science with the Living Will, Durable Health Care Power
of Attorney (DHCPOA), and the Health Care Surrogate
The purpose of a Living Will is to allow individuals
the right to control decisions relating to their own
medical care, including having death delaying procedures
withheld or withdrawn in instances of a terminal
condition. The person must be 18 years of age and of
sound mind. It must be signed by the person and witnessed
by two people.
Health Care Powers of Attorney
A Durable Health Care Power of Attorney allows
individuals the right to control all aspects of their
personal care and medical treatment, including the right
to decline medical treatment or to direct that it be
withdrawn even if death ensues. A DHCPOA goes further
than a Living Will. While both allow for the individual's
intent concerning death delaying procedures and both
require the individual to be of sound mind and signed and
witnessed by two people, the DHCPOA provides for the
- donation of organs
- refusal of autopsy
- disposition of remains (i.e. cremation,
- appointment of an agent to make decisions of some
or all medical treatment if the individual is unable
to do so for themselves
- continuing or terminating food and water
- naming a person to be guardian of the person if
one becomes necessary.
Both documents can be amended or revoked at any time.
If the individual is competent, his or her wishes
supersede the document. Pain medication can be given to
the individual as needed under any circumstances. A copy
should be given to the individual doctor. If the doctor
cannot comply, notice must be given to the individual
Because many people do not have either of these
documents, Illinois enacted the Health Care Surrogate
Act. The purpose of this Act is to establish reasonable
procedures for making decisions to end life-sustaining
treatment of an individual who lacks the ability to make
decisions and has a terminal illness or condition. It
allows another person to act on behalf of the patient to
stop or continue life-sustaining treatment.
The surrogate must try to follow the patient's wishes
if they are known or can be determined. If not, the
surrogate must make a decision based upon the best
interest of the patient. The act is designed for family
members to make these decisions for a patient rather than
Finally, there is a new Federal Patient
Self-Determination Act. This Act requires hospitals,
nursing homes and medical institutions to advise patients
of their rights concerning Durable Health Care Powers of
This pamphlet is for informational purposes only. You
should consult with an attorney regarding your specific
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