Legal Question in Wills and Trusts in Illinois

Re: Last Will - My wife and I have a blended family. For example, if I passed away first, I want my wife to inherit all of my possessions to be assured she can live comfortably. When she passes away, I would want the remainder of the estate to be split evenly between both families. However, I was told that my wife, upon my death, could create a new will would have full control over every asset and she can then decide what my family would receive, even nothing. I trust her, but I don't trust others who can influence her and pressure her to make that decision. Outside of giving half of our estate to my family upon my death, what can be done to be sure my wishes are carried out after we are both deceased? And, as opposed to selecting a family member or friend as Executor, can we both request a court appointed, impartial Executor?

Asked on 1/28/22, 3:23 am

1 Answer from Attorneys

Henry Repay Law Offices of Henry Repay

Your question is worth an in-person consultation with an experienced estate planning attorney to better explain what you have been told. If you use a simple will leaving everything to your wife, yes, you would be trusting her to honor your intentions as a couple and trusting, further, that she would not be swayed by others, particularly as time passes and her cognitive functions may decline. Similarly, she would be trusting you.

There is something called a "joint and mutual will," which is almost never utilized by estate planning attorneys. In theory, it would lock the survivor into the will created before the passing of the first to die. This typically creates issues as there are often very good reasons for the will to be changed as time passes, changes that the decedent would have trusted the other spouse to make, changes that the first to die would readily make if alive (perhaps based on an unexpected development, such as an injury or disability that creates a need to be met, maybe even in the family of the first to have died). Costly litigation may ensue to allow the will to be changed regardless the original designation. You probably will not find an attorney willing to use such a will without making it abundantly clear that he or she does not recommend it.

The better courses include a living trust or testamentary trust (providing for your spouse for the remainder of her life), providing for some division of the estate at the outset if funds are sufficient, ... Your plan needs to be evaluated in light of dialogue that can only take place during a consultation. If the estate is significant, tax considerations would also come into play.

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Answered on 1/28/22, 8:43 am

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