[Good] Will Hunting More Likely Under New Illinois Law

Under Illinois law, when a resident dies, their assets and liabilities transfer to their estate. The  process can become particularly complicated when no valid will exists, a will can’t be located, or conflicting wills are discovered.

In the absence of a valid will, the estate is disbursed in accordance with the State’s intestacy statute,[1] which may not follow the deceased’s final wishes. It also frequently leads to greater costs because potential heirs must be located and notified and probate courts must supervise and resolve disputes. This can happen when the decedent never created a will, attempted to create one but failed to satisfy the formalities, or created one but subsequently invalidated it without a replacement.

If a valid will existed but can’t be found, the Probate Act generally assumes it was intentionally rescinded,[2] again leading to probate proceedings and potentially prolonged litigation.

The third scenario, often dramatized in television and movies, may be the most intriguing: an elderly billionaire leaves everything to his wife in Will #1, his mistress in Will #2, and the mother of his illegitimate child in Will #3. Each will has the same date but was witnessed by different parties, so the order in which the wills were executed is not readily apparent. Once again, the matter has to go through probate, where the court determines which will controls and legal fees continue to accrue, imposing costs on the estate, the claimants, and the court system.

The Act

Earlier this year, Illinois enacted Public Act 104-0719, which allows but does not require circuit court clerks to create and maintain will depositories for the voluntary safekeeping of original wills before a testator’s death. The Act adds Section 16.2, titled “Will Depository,” to the Clerk of Courts Act (705 ILCS 105) and becomes effective January 1, 2027.

The Act in Practice

The Act allows a county to establish a will depository for its residents. Courts may also authorize deposits in other counties. In addition, the law permits the deposit of living wills (which generally address end-of-life and medical-care issues). The living will provision is limited to a resident’s county and does not provide for a court-ordered exception.  A fee of up to $25 may be assessed, but married couples filing jointly are considered a single deposit.

Once the clerk receives the will for deposit, it’s placed in a sealed envelope in the depositor’s presence. The outside of the envelope must include the date of deposit; the depositor’s name, address, and telephone number; the testator’s full legal name and last known address; the names of any executor or co-executors; and a short description of the document, including its execution date (if known) and page count. The clerk provides the depositor with a receipt and indexes the sealed envelope alphabetically by the testator’s name.

Access to a deposited will is limited. During a testator’s lifetime, it may be released only to the testator or to a court pursuant to a court order. After the testator’s death, an executor may retrieve the will upon presentation of the required documentation. If no executor retrieves the will within 12 months, an heir, creditor, or other interested party may seek access through a court order.

The clerk may dispose of a deposited will, without further notice, if 100 years have elapsed from the date of deposit and the clerk has received neither a certified death certificate nor a withdrawal request. Deposited wills are not considered public or court records and are excluded from public access.

The Act shields clerks from liability for the loss or destruction of a deposited will unless the loss results from willful misconduct.

Possible Benefits

One potential benefit of a will depository is certainty: a copy of the will is kept in a known, presumed secure location that the executor can access upon the testator’s death. Previously, testators who kept their sole copies in safety deposit boxes without naming any additional authorized users to the box left their executors in a Catch-22: the bank needed a copy of the will to authorize the opening of the safety deposit box, but the only way to get to the will was to open the safety deposit box. Likewise, the Act eliminates the need to dig through file cabinets, banker’s boxes, desk drawers, strong boxes, and safes and vaults in search of a document that might not even be on the premises.

A will depository may also provide some degree of relief if a will is likely to be contested: the document is sealed, secured, and accessible only to the testator or a person holding a court order, not to family members who might be snooping through a relative’s papers to see what they may one day receive.

Potential Drawbacks

The Act does not protect the document from destruction, loss, or invalidity. A fire, water loss, tornado, or other disaster could easily destroy a paper record. If that was the only copy, the will depository would have provided no meaningful benefit.

Second, the Act depends on the clerk’s office acting diligently, not merely avoiding willful misconduct. A misfiled envelope has the same detrimental effect regardless of whether the error was intentional or negligent.

Third, depositing a will does not change the validity of the document. If a will was not signed, witnessed, or otherwise failed to comply with the required formalities, it may have been properly deposited but have no legal effect. Unfortunately, that problem may not be discovered for decades, after everyone has operated under a false sense of security.

Lastly, the 100-year limitation fails to account for extraordinary cases such as Jeanne Calment. Jeanne, who lived until she was 122, outlived her creditor, who had been paying her a monthly stipend in exchange for the right to receive her home upon her death. While not the most likely of circumstances, it illustrates that a fixed retention period may not cover every possibility.

Implications for the Future

While the Act is a step toward making the probate and estate planning process easier, it’s not a complete solution, nor should it be the sole mechanism for ensuring that one’s last wishes are carried out.

To help minimize the risks and maximize the benefits of the new will depository provisions, testators should consider taking the following steps:

• When possible, have meaningful discussions with potential heirs, including where copies of estate planning documents are kept, how they can be accessed, and by whom.
• Keep multiple original documents in multiple secure locations to prevent their loss or destruction, whether accidental or otherwise.
• Make sure that all documents are legally sufficient and enforceable before placing them in a will depository. An unenforceable will can be worse than having no will at all. It creates a false sense of security, can lead to disharmony among heirs and intended beneficiaries, and wastes valuable time and money.

When testators do their due diligence and their documents are properly prepared, the new will depository provisions can provide another layer of security to help ensure their final wishes are carried out.

While a will depository may provide an additional layer of protection, it doesn’t replace the need for properly prepared estate planning documents. If you have questions about wills, probate, or estate planning, HeplerBroom’s Estate Planning and Probate team can assist with developing and reviewing documents to help ensure they are legally sufficient and enforceable.

[1] Contained within Illinois’ Probate Act of 1975, 755 ILCS 5/2-1, et seq.

[2] For example, a decedent may have been known to have made a will that was kept at the decedent’s home, but decedent died in a fire that destroyed the home and its contents. Although there may be evidence that the will existed and was destroyed accidentally, the law treats the decedent as having died intestate.