Taxation & Estate Planning

Foreign Wills

By Joel A. Schoenmeyer

The procedure for admitting to probate a Will executed in Illinois, by an Illinois resident, is pretty simple. A wrinkle is added if the Will wasn't executed in Illinois. A typical scenario is where a person executes a Will in another state, and then moves to (and dies in) Illinois. Can the "foreign Will" be admitted to probate in Illinois?

The answer is "yes," in the following situations:

1. The Will has already been admitted to probate in another state,

2. The Will, although executed outside Illinois, was executed in accordance with...

a. Illinois law;
b. The law of the state in which it was executed; or
c. The law of the state in which the testator lived when the Will was executed.

The rules about admitting a Will already admitted to probate in another state are found in Section 7-3 of the Probate Act. The big question here is whether the original Will can be obtained from the other state.

Section 7-4 of the Probate Act addresses the admission of a not-yet-probated Will executed outside of Illinois. Proof is easiest when the Will already complies with the execution requirements in Illinois, which are (from Section 4-3 of the Probate Act) as follows:

Every will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses.

Full post as published by Death and Taxes Blog on June 04, 2008 (boomark / email).