LAST WILL AND TESTAMENT
of
[TESTATOR FULL LEGAL NAME]
establishing the [TESTAMENTARY TRUST NAME]
Effective Date: [DATE]
County of Domicile: [COUNTY], Illinois
Governing Law: Illinois Probate Act of 1975 (755 ILCS 5/) and Illinois Trusts and Trustees Act (760 ILCS 5/)
[// GUIDANCE: Replace bracketed text with client-specific information. Confirm county of domicile because venue in Illinois probate is county-specific.]
TABLE OF CONTENTS
- Article I – Definitions
- Article II – Revocation & Family Information
- Article III – Appointment of Fiduciaries
- Article IV – Specific Bequests
- Article V – Residuary Estate & Creation of Testamentary Trust
- Article VI – Trust Administration
- Article VII – Tax Matters
- Article VIII – Fiduciary Standards, Indemnification & Liability Caps
- Article IX – Default, Remedies & Dispute Resolution
- Article X – General Provisions
- Article XI – Execution & Attestation
- Self-Proving Affidavit (Illinois)
ARTICLE I
DEFINITIONS
For ease of reference, the following terms—as capitalized herein—shall have the meanings set forth below.
“Accounting Period” – A calendar year ending December 31 unless the Trustee selects another fiscal year consistent with 760 ILCS 5/11.
“Administrator” – A successor personal representative appointed by the Probate Court if no nominated Executor qualifies.
“Beneficiary” – Each person or entity entitled to current or future distributions from the Trust.
“Children” – Collectively [NAME OF EACH CHILD] and any additional child born to or legally adopted by the Testator after this Will’s execution.
“Code” – The Internal Revenue Code of 1986, as amended.
“Executor” – The individual or institution nominated in Article III to administer the probate estate.
“Independent Administration” – Administration without court supervision under 755 ILCS 5/28-1 et seq.
“Personal Representative” – The Executor or any duly appointed Administrator.
“Property” – All real, personal, tangible, and intangible property, wherever situated.
“Trust” – The testamentary trust created in Article V, known as the “[TESTAMENTARY TRUST NAME].”
“Trustee” – The person(s) or institution(s) nominated and acting under Article VI, including any Successor Trustee.
[// GUIDANCE: Add or delete defined terms to match client circumstances. Maintain alphabetical order.]
ARTICLE II
REVOCATION & FAMILY INFORMATION
2.1 Revocation of Prior Instruments
I hereby revoke all prior wills and codicils.
2.2 Testator’s Status
I declare that I am of legal age, of sound mind, and under no duress or undue influence.
2.3 Family Identification
I am currently [married to [SPOUSE NAME] / unmarried]. My children are listed in Article I. If I subsequently have or adopt additional children, they shall be treated identically to my existing Children.
2.4 Intent
This Will reflects my complete testamentary intent. Any ambiguity shall be resolved to carry out the dispositive scheme expressed herein.
ARTICLE III
APPOINTMENT OF FIDUCIARIES
3.1 Executor
(a) I nominate [PRIMARY EXECUTOR NAME] of [CITY, STATE] as Executor.
(b) Alternate: [FIRST ALTERNATE EXECUTOR].
(c) Bond: No surety bond shall be required (755 ILCS 5/6-13).
3.2 Guardian of Minor Children
If at my death any Child is under age 18, I nominate [PRIMARY GUARDIAN] as guardian of the person and estate. Alternate: [ALTERNATE GUARDIAN].
3.3 Trustee
(a) Initial Trustee: [PRIMARY TRUSTEE].
(b) Successor Trustee(s): [SUCCESSOR TRUSTEE 1], then [SUCCESSOR TRUSTEE 2].
(c) Corporate Trustee Option: Any Successor Trustee may resign in favor of a corporate fiduciary having Illinois trust powers.
3.4 Waiver of Court Supervision
All fiduciaries may act independently of court supervision to the fullest extent permitted by law.
ARTICLE IV
SPECIFIC BEQUESTS
4.1 Tangible Personal Property
I devise all tangible personal property to [BENEFICIARY NAME], to be distributed in accordance with any memorandum signed by me and found with this Will, pursuant to 755 ILCS 5/4-4.
4.2 Pecuniary Bequests
(a) [BENEFICIARY] – [$AMOUNT].
(b) [CHARITY] – [$AMOUNT], provided the charity is qualified under § 170(c) of the Code.
4.3 Conditional Bequests
If any named beneficiary fails to survive me by thirty (30) days, that bequest shall lapse and pass to the Residuary Estate unless specifically stated otherwise herein.
ARTICLE V
RESIDUARY ESTATE & CREATION OF TESTAMENTARY TRUST
5.1 Residuary Disposition
All remaining Property, real and personal, tangible and intangible, wherever situated, including all lapsed legacies, shall pour over to the Trust created below.
5.2 Creation of [TESTAMENTARY TRUST NAME]
(a) Trust Estate: The Residuary Estate, together with all property subsequently added by will, transfer-on-death designation, beneficiary designation, or otherwise.
(b) Separate Shares: The Trustee shall maintain separate shares for each Beneficiary if advisable for tax or administrative efficiency.
5.3 Primary Beneficiaries and Distribution Standards
(a) Income and Principal: The Trustee shall distribute so much of the net income and/or principal as the Trustee, in its sole discretion, deems necessary or advisable for the health, education, maintenance, and support (“HEMS”) of the Beneficiary.
(b) Age-Based Principal Distributions: One-third (⅓) at age 25, one-half (½) of the balance at age 30, and the remainder at age 35.
(c) Spendthrift Protection: Beneficiaries shall have no power to anticipate, assign, or pledge their interest (760 ILCS 5/15.1).
5.4 Remainder
Upon the death of the last Beneficiary, the remaining Trust assets shall pass to [REMAINDER BENEFICIARY/CHARITY].
ARTICLE VI
TRUST ADMINISTRATION
6.1 Trustee Powers
Subject to fiduciary obligations under 760 ILCS 5/4, the Trustee shall have all powers a prudent person would deem advisable, including but not limited to:
(a) Investment powers consistent with the Illinois Prudent Investor Rule (760 ILCS 5/5);
(b) Power to retain original assets;
(c) Power to lease, sell, exchange, or mortgage trust property;
(d) Power to make tax elections, including allocations between income and principal under the Illinois Principal and Income Act (760 ILCS 15/).
[// GUIDANCE: Consider limiting or expanding specific powers based on client asset profile.]
6.2 Trustee Compensation & Reimbursement
The Trustee is entitled to reasonable compensation and reimbursement of properly incurred expenses.
6.3 Trust Records and Reports
Annual written accountings shall be provided to adult Beneficiaries and the Guardian of minor Beneficiaries.
6.4 Trustee Resignation & Removal
(a) Resignation: 30 days’ written notice to adult Beneficiaries.
(b) Removal: By majority of adult Beneficiaries or by order of the Probate Court for cause.
(c) Successor Acceptance: Title to Trust assets vests automatically in the Successor Trustee upon written acceptance.
ARTICLE VII
TAX MATTERS
7.1 Estate Tax Allocation
All estate, inheritance, and succession taxes shall be paid from the Residuary Estate without apportionment, except for taxes attributable to property over which I hold a power of appointment.
7.2 Generation-Skipping Tax (GST)
The Trustee shall make appropriate allocations of the Testator’s GST exemption to maximize tax efficiency.
7.3 Tax Elections
The Personal Representative and Trustee may make, jointly or separately, all elections under the Code to minimize overall tax liability, including QTIP and portability elections.
ARTICLE VIII
FIDUCIARY STANDARDS, INDEMNIFICATION & LIABILITY CAPS
8.1 Standard of Care
Each fiduciary shall exercise the judgment and care under the circumstances then prevailing which an ordinarily prudent person would exercise in the management of his or her own affairs.
8.2 Trustee Indemnification
Except for acts of willful misconduct or gross negligence, the Trustee shall be indemnified for all claims and liabilities arising from the proper administration of the Trust. Indemnification shall be satisfied solely out of Trust assets.
8.3 Liability Cap
Any claim against a fiduciary shall be limited exclusively to the assets of the probate estate (as to the Executor) or to the assets of the Trust (as to the Trustee). No personal liability shall attach.
ARTICLE IX
DEFAULT, REMEDIES & DISPUTE RESOLUTION
9.1 Events of Default
(a) Breach of fiduciary duty;
(b) Failure to provide required accountings;
(c) Misappropriation of assets.
9.2 Notice & Cure
A written notice specifying the nature of the default shall be given to the fiduciary, who shall have thirty (30) days to cure before further action.
9.3 Remedies
In addition to removal and surcharge, any interested person may seek injunctive relief, specific performance, or an accounting from the Probate Division of the Circuit Court of [COUNTY], Illinois.
9.4 Governing Law & Forum
This Will and the Trust shall be governed by Illinois law. Exclusive jurisdiction lies with the Probate Division of the Circuit Court of [COUNTY], Illinois.
9.5 No Arbitration; No Jury Trial
Given the exclusive probate jurisdiction under Illinois law, arbitration is unavailable. Jury trial is waived as to probate matters pursuant to state law.
ARTICLE X
GENERAL PROVISIONS
10.1 Severability
If any provision is unenforceable, the remaining provisions shall remain in full force.
10.2 Headings
Headings are for convenience only and do not affect interpretation.
10.3 Amendment & Revocation
This Will may be amended only by a duly executed codicil or revoked as provided by law.
10.4 Integration
This instrument constitutes my entire Will and supersedes all prior statements of testamentary intent.
10.5 Digital Assets
The Executor and Trustee shall have authority under 755 ILCS 70/ to access, manage, and dispose of my digital assets.
ARTICLE XI
EXECUTION & ATTESTATION
I, [TESTATOR FULL LEGAL NAME], sign my name to this Will on the date indicated below and, being first duly sworn, declare to the undersigned witnesses that I sign and execute this instrument willingly, that I am of legal age, of sound mind, and under no constraint or undue influence.
Date: ____
[TESTATOR FULL LEGAL NAME], Testator
Witness Attestation
The undersigned, each being over the age of 18, competent, and not beneficiaries under this Will (other than as permitted by 755 ILCS 5/4-6), witness the Testator’s signature and, at the Testator’s request and in the Testator’s presence and in the presence of each other, sign our names as witnesses.
-
____ Date: __
[PRINT NAME & ADDRESS] -
____ Date: __
[PRINT NAME & ADDRESS]
[// GUIDANCE: Illinois requires two disinterested witnesses. Have them sign in the Testator’s presence.]
SELF-PROVING AFFIDAVIT (Illinois)
State of Illinois )
) SS.
County of __ )
Before me, the undersigned notary public, personally appeared [TESTATOR NAME], [WITNESS #1 NAME], and [WITNESS #2 NAME], whose names are signed to the foregoing instrument and who, each being duly sworn, do hereby declare to me that the Testator signed and executed the instrument as the Testator’s Will, that the Testator signed willingly, and that the witnesses, in the presence and at the request of the Testator, and in the presence of each other, signed the Will as witnesses; that to the best of the knowledge of each witness, the Testator was at the time over 18 years of age, of sound mind, and under no constraint or undue influence.
Notary Public
My commission expires: ______
[// GUIDANCE: Illinois permits self-proving wills under 755 ILCS 5/6-4. Attach this affidavit or use pre-printed statutory form.]