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Illinois Estate Planning Basics
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Illinois Estate Planning Basics

Illinois estate planning basics: the will, property power of attorney, health care documents, and living trust adults need, plus probate and the $4M estate tax.

By Settled Editorial

Estate planning in Illinois comes down to a short set of signed documents that decide who inherits your property, who settles your estate, and who speaks for you if you cannot speak for yourself. Most adults need three: a will, a power of attorney for property, and health care documents. Many people add a revocable living trust and a transfer on death instrument for real estate.

This guide is the plain-language map. It walks through each document under Illinois law, how probate works in the Circuit Court, the small estate shortcut, the state tax picture, and who inherits when there is no will. Each Illinois guide linked below goes deeper on one topic.

Treat this page as a planning map, not as legal advice for your situation. Illinois courts apply these statutes to the facts of each estate, and one signing mistake can void a document. When real estate, a blended family, or a possible dispute is involved, confirm your plan with a licensed Illinois attorney before you sign.

Why a Plan Matters in Illinois

Here is what a signed plan does for you and your family:

  • You pick who inherits instead of leaving it to a statute.
  • You name the person who settles your estate and the person who raises your minor children.
  • You name someone to pay your bills and make medical calls if you cannot.
  • You can keep your family out of a contested guardianship case and shorten the work after death.

Without a plan, Illinois law fills the gaps. Section 2-1 of the Probate Act decides who inherits. A judge may pick who manages your money during incapacity. Your family absorbs the cost and the delay.

The Documents Illinois Adults Need

1. A Will

A will names who receives your probate property, names the executor who settles the estate, and designates a guardian for your minor children. Illinois sets a short list of rules under the Probate Act of 1975:

  • You must be at least 18 and of sound mind and memory (755 ILCS 5/4-1).
  • The will must be in writing, signed by you or by someone in your presence at your direction, and attested in your presence by 2 or more credible witnesses (755 ILCS 5/4-3).

Two points catch people out. Illinois has no statute recognizing an unwitnessed handwritten will, so a homemade note signed alone does not qualify. And there is no separate self-proving affidavit statute like other states use. Instead, an attestation clause signed by the witnesses, or an affidavit attached to the will, lets the witnesses prove the will without appearing in court (755 ILCS 5/6-4). Ask the drafter to include one.

Whoever holds your will must file it with the Circuit Court clerk immediately after your death, and willfully hiding it for 30 days is a felony (755 ILCS 5/6-1). Read the Illinois will requirements guide before you sign anything, and see the Illinois will contests guide for how a challenge works.

2. Power of Attorney for Property

A property power of attorney lets an agent you pick handle banking, bills, real estate, taxes, and benefits if you cannot. Without one, your family may have to open a guardianship of the estate in court.

The Illinois Power of Attorney Act governs the document:

  • It is durable by default. The agency runs until your death regardless of any later disability, incapacity, or guardianship, unless the document names an earlier end date (755 ILCS 45/2-5).
  • Signing takes one witness plus a notary. Every property power must bear the signature of a witness and must be notarized (755 ILCS 45/3-3.6).
  • Your agent, a successor agent, your close relatives, your physician, and the operator of a facility where you live cannot serve as the witness or the notary (755 ILCS 45/3-3.6).

Illinois publishes a statutory short form for property at 755 ILCS 45/3-3. Use it with all three parts: the notice to the individual signing, the form, and the notice to agent. Banks accept the statutory form more readily, which saves an argument later. The Illinois power of attorney guide covers what to grant and what to do when a bank hesitates.

3. Health Care Documents

Illinois splits medical planning across separate documents rather than one combined directive. Get the difference straight before you sign:

DocumentWhat it doesSigning rule
Power of attorney for health careNames an agent to make medical decisions for youOne witness, no notary required (755 ILCS 45/4-5.1)
Living will declarationStates that death delaying procedures should not prolong your life in a terminal conditionSigned by you and witnessed by 2 people age 18 or older (755 ILCS 35/3)

The health care agent is the workhorse. It covers every medical decision, not only end-of-life care. If you sign nothing, the Health Care Surrogate Act supplies a decision maker in a set order: guardian of the person, spouse, adult child, parent, adult sibling, adult grandchild, close friend, then the guardian of the estate (755 ILCS 40/25). Surrogates at the same level must try to reach consensus, and if they cannot, a majority of them controls unless the minority opens a guardianship case. That order may not match your choice. Naming your own agent avoids the whole sequence. The Illinois healthcare directive guide walks through both forms.

4. A Revocable Living Trust, If You Need One

A revocable living trust holds assets during your life and passes whatever it owns at your death without probate. You stay in control as trustee while you are able, and a successor trustee takes over at incapacity or death. Under the Illinois Trust Code, a trust exists only if you have capacity, you show an intent to create it, there is a definite beneficiary, the trustee has duties, and the same person is not both sole trustee and sole beneficiary (760 ILCS 3/402). The Illinois revocable living trust guide covers funding, the pour-over will, and how to decide whether you should make a trust at all.

A trust is optional. Illinois already offers independent administration, which lets most executors settle an estate without a judge signing off on each step (755 ILCS 5/28-2). A trust still earns its cost when you own real estate in more than one state, want privacy, want smooth management during incapacity, or expect a fight. Compare the routes on the national will versus trust page. If you want to set money aside for a pet, the Illinois pet trusts guide explains the animal-care trust.

Signing These Documents Electronically

Illinois keeps electronic signing and remote witnesses in a separate act: the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act, 755 ILCS 6/. Under Section 1-15 its requirements control wherever they conflict with the Probate Act, another statute, or the common law. It does not reach every document on this page the same way.

DocumentWhat the Act reachesControlling section
WillAn electronic will, and attestation by 2 witnesses over audio-video communication755 ILCS 6/5-5, 6/15-10
Power of attorney for propertyElectronic execution, and a remote witness755 ILCS 6/1-20, Article 11, 6/15-5
Health care power of attorney, living will, POLSTElectronic execution, and a remote witness755 ILCS 6/1-20, Article 11, 6/15-5
Trust instrumentElectronic execution, and a remote witness755 ILCS 6/1-20, Article 11, 6/15-5
Guardian nomination for you or your childElectronic execution, and a remote witness755 ILCS 6/1-20, Article 11, 6/15-5
Transfer on death instrumentUnsettled. The deed-of-real-property exclusion is the safe reading, so sign and record on paper755 ILCS 6/1-20, 755 ILCS 27/40
Vehicle, watercraft, or aircraft certificate of titleExcluded from electronic execution755 ILCS 6/1-20

Section 1-20 sets the list. A nontestamentary estate planning document includes a trust instrument, a power of attorney that is durable under Article II of the Illinois Power of Attorney Act, an advance directive naming the health care power of attorney, directive to physicians, natural death statement, living will, and medical or physician order for life-sustaining treatment, a power of appointment, a nomination of a guardian for yourself or for a minor or disabled adult child, a mental health treatment declaration, a disclaimer under 755 ILCS 5/2-7, and a catch-all for any other record intended to carry out an individual's intent regarding property or health care while incapacitated or on death. The same sentence ends with an exclusion: the term does not include a deed of real property or a certificate of title for a vehicle, watercraft, or aircraft.

For the documents it does cover, Article 11 supplies the mechanics. An electronic record satisfies a requirement that the document be in writing, an electronic signature satisfies a signature requirement, a required witnessing or attestation may be electronic, and a notarization requirement is satisfied by the notary's electronic signature attached to the document with everything else the law requires (755 ILCS 6/11-25, 6/11-35, and 6/11-40).

Whether any of that reaches an Illinois transfer on death instrument is the one row in the table the statutes do not settle. Section 1-20 excludes a deed of real property from the definition, and 755 ILCS 27/40(a)(1)(i) requires a transfer on death instrument to contain the elements and formalities of a properly recordable inter vivos deed, which is the reading that puts it outside the Act. Cutting the other way, the Transfer on Death Instrument Act calls the document an instrument rather than a deed throughout, and the catch-all at the end of the Section 1-20 list describes what a transfer on death instrument does. Neither statute says which reading controls, and we have found no Illinois decision resolving it. Until one does, the conservative course is to execute and record a transfer on death instrument the conventional paper way, with the witnesses and acknowledgment Section 45 of the Act requires, because Section 40(b) voids an instrument that misses any requirement of Section 40.

Witnessing runs wider than electronic execution. Section 15-5 provides that a person may witness any document other than a will using audio-video communication, so the remote-witness route is not limited to the documents Section 1-20 lists. The witness confirms the signer's identity, the signer signs, and the witness signs the document or a separate signature page that has to be attached within 10 business days and before the signer dies or loses capacity.

Electronic form stays optional. Section 11-20 states that nobody has to create or sign one of these documents electronically, and that rule cannot be waived. Article 11 also steps aside where the document's own terms rule out an electronic record or signature (Section 11-10), and Section 11-15 carries the ordinary Illinois law and equity that govern the paper document over to the electronic one, so the witness disqualification lists in 755 ILCS 45/3-3.6 and 45/4-5.1 are not relaxed by going electronic. Talk with an Illinois attorney about which route fits your documents, especially anything that touches real estate.

Beneficiary Designations and Transfer on Death Instruments

Signed documents are only half the job. Retirement accounts, life insurance, and payable-on-death bank accounts pass by the beneficiary form on file, not by your will. Check those forms after every marriage, divorce, birth, or death. An outdated beneficiary is one of the most common ways a careful plan goes wrong.

Illinois also lets you pass real estate outside probate with a transfer on death instrument, often called a TODI. The rules are strict:

  • The instrument must meet the formalities of a recordable deed, must state that the transfer happens at your death, and must be recorded with the county recorder before you die (755 ILCS 27/40).
  • You sign it, 2 or more credible witnesses attest in writing, and all signatures are acknowledged before a notary (755 ILCS 27/45).
  • Missing any of that voids the instrument entirely (755 ILCS 27/40).
  • Do not assume the electronic-execution route described above is open here. Section 1-20 of 755 ILCS 6/ excludes a deed of real property from that Act's definition, while the Transfer on Death Instrument Act calls this document an instrument that has to carry a recordable deed's formalities. No Illinois statute resolves which label wins. Because Section 40(b) voids an instrument that misses any requirement, sign and record on paper unless a licensed Illinois attorney advises otherwise.

The Illinois transfer on death instrument guide covers the recording step and the beneficiary-as-witness trap. The Illinois avoid probate guide puts every non-probate route side by side.

How Illinois Probate Works

Probate in Illinois runs through the Circuit Court in the county where the person lived. The court admits the will, appoints an executor or administrator, issues letters of office, and oversees payment of claims and distribution.

Most estates use independent administration. Unless the will forbids it or the court requires supervision, the court grants independent administration on request, and the representative then works without seeking a court order for each step (755 ILCS 5/28-2). Start with the Illinois probate guide and the Illinois executor duties guide.

The Illinois Small Estate Affidavit

Many families skip probate entirely. A small estate affidavit transfers personal property when no letters of office are outstanding and none are contemplated, and the personal estate passing under the will or by intestacy does not exceed $150,000, excluding vehicles registered with the Secretary of State (755 ILCS 5/25-1). That threshold rose from $100,000 under Public Act 104-346, effective August 15, 2025.

Vehicles get their own treatment. When the affidavit is used only to retitle vehicles with the Secretary of State, the $150,000 personal estate cap does not apply. Real estate never transfers by small estate affidavit. See the Illinois small estate affidavit page for the form and the steps.

Illinois Estate Tax and Inheritance Tax

Illinois is one of a dozen states with its own estate tax, so this deserves attention even from families who owe nothing federally.

  • The Illinois estate tax applies to a taxable transfer of property with a tax situs in Illinois (35 ILCS 405/3).
  • The exclusion amount is $4,000,000 for persons dying on or after January 1, 2013 (35 ILCS 405/2). That figure is fixed in the statute and does not index to inflation.
  • The Illinois exclusion is not portable between spouses the way the federal exclusion is, so a married couple with combined assets above $4,000,000 should ask an attorney about trust planning.
  • Illinois charges no separate inheritance tax on beneficiaries. The Attorney General administers the estate tax.
  • The federal estate tax exclusion is far higher, $15,000,000 per person for deaths in 2026 per the IRS, so most estates owe no federal tax while still owing Illinois tax.

The gap between $4,000,000 and $15,000,000 is where Illinois families get surprised. A house, a retirement account, and a life insurance policy add up faster than people expect, and life insurance you own counts toward the total.

Who Inherits If You Have No Will

Section 2-1 of the Probate Act sets the default. The rules most families hit:

  • Spouse and descendants: half the estate to the spouse, half to the descendants per stirpes.
  • Descendants and no spouse: everything to the descendants per stirpes.
  • Spouse and no descendants: everything to the spouse.
  • No spouse and no descendants: to parents and siblings in equal parts, with a double share to a surviving parent when one parent has died.

Note the first rule. Illinois does not give the whole estate to a surviving spouse when there are children. That half-and-half split surprises most couples, and it can force the sale of a family home. The Illinois intestate succession guide works through each family shape.

Stepchildren are not heirs unless adopted, and an unmarried partner inherits nothing under this statute. A will replaces every one of these defaults.

Naming a Guardian for Minor Children

A parent whose parental rights are intact may designate a guardian for a minor child in any writing, including a will. The designation must be witnessed by 2 or more credible witnesses age 18 or older, and neither may be the person named as guardian. When the designation is executed and attested the same way a will is, it carries prima facie validity in court (755 ILCS 5/11-5). Name a successor too. The Illinois guardianship planning guide covers the court process.

Getting Started

You do not have to do it all at once. A sensible order:

  1. List what you own and roughly what it is worth, including life insurance face value.
  2. Compare that total against the $4,000,000 Illinois exclusion.
  3. Decide who inherits, who serves as executor, who raises your children, and who acts as your property and health care agents.
  4. Sign the will, the property power of attorney, and the health care documents.
  5. Check every beneficiary designation on your accounts and policies.
  6. Record a transfer on death instrument if you want real estate to skip probate.
  7. Tell your executor and agents where the originals are, and review the plan after any major life change.

For the wider picture across states, the national estate planning overview shows how these pieces connect. For local court information, start at the Illinois probate hub or the Illinois court directory.

Common Questions

Does a will avoid probate in Illinois? No. A will directs who receives probate property and names your executor, but the estate still passes through the Circuit Court. Non-probate transfers such as beneficiary designations, joint ownership, a funded trust, and a recorded transfer on death instrument are what keep assets out of probate.

Can I write my own will by hand in Illinois? Illinois requires attestation by 2 or more credible witnesses under 755 ILCS 5/4-3. A handwritten will signed without witnesses does not satisfy that rule.

Do I need a notary for my Illinois will? The statute requires witnesses, not a notary. Notarization of an attestation affidavit helps prove the will later without calling the witnesses to court.

Is one power of attorney enough for money and medical care? No. Illinois uses a separate property power and a separate health care power, and they carry different signing rules.

Can I sign my Illinois estate planning documents electronically? Illinois law provides an electronic path for wills, trust instruments, durable property powers, and advance directives under 755 ILCS 6/, plus a remote witness over audio-video communication under Section 15-5. Whether it extends to a transfer on death instrument is unsettled: Section 1-20 excludes a deed of real property, and the Transfer on Death Instrument Act calls this document an instrument that has to carry a recordable deed's formalities. Sign and record that one on paper. Electronic form is never required for anything (Section 11-20).

The Bottom Line

Most Illinois adults need a will, a property power of attorney, and health care documents, with a living trust added when the situation calls for it. Illinois witnesses matter: 2 for a will, 1 plus a notary for a property power, 1 for a health care agent, 2 for a living will, and 2 plus a notary for a transfer on death instrument. Watch the $4,000,000 state estate tax exclusion, keep beneficiary designations current, and revisit the plan as life changes.

This guide is general information about Illinois estate planning, not advice for your situation. Confirm anything that affects your estate with a licensed Illinois attorney before you sign or rely on a document.

Sources:

It is not legal advice.

Prefer to talk it through? Connect with an estate-planning attorney

Settled Estate is not a law firm and does not give legal advice.

Information current as of July 19, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Illinois can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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