A Will Written Later in Time May Cause Probate Confusion

will and testament, estate planning, Illinois estate planning lawyer, attorney, A German art collector achieved notoriety last fall when the world discovered his hidden collection of European masterworks that had been obtained by his Nazi-era father. This revelation spawned a collective outrage that culminated in a web of questions after he died, leaving behind no known heirs. A Swiss museum initially claimed to be the sole heir named in the collector’s will. Reports then surfaced about a second will allegedly written before his death.

The collector was a German citizen, so the issues in his case have no direct bearing on Illinoisans. These issues do pose interesting legal questions that could arise in Illinois probate law. Suppose that these are the only facts presented in the collector’s case: He wrote a will naming the museum as his sole heir. Days later, rumors surfaced of a second will written later in time.*

Here are two questions that come to mind:

  1. How does the existence of multiple wills affect probate?
  2. What if it is discovered that someone had been harboring a later-written will?

*This is a supposition and should not be taken as fact in the art collector’s case. The facts in his case are far more complicated. These questions will be discussed in the context of Illinois probate law.

Revoking an Original Will

Generally, if a person writes more than one will, the will written later in time will prevail. The second will revokes the original, but only to the extent that it is inconsistent with the original. If the goal is to revoke the original will, expressly stating that intention in the second document will do the trick. Keep in mind that executing a new will is not the only revocation option. Here are two other methods:

  1. Burn, tear or otherwise physically destroy the will. Someone else may destroy it for you, but only in your presence and at your direction; or
  2. Write and sign a statement declaring the original will to be invalid. As with a will or codicil, this document must be witnessed by two non-beneficiaries.

Thus, the existence of multiple wills has a significant effect on probate. A later will may result in new or different bequests than originally stated and it may cause confusion if parts of the original still control.

Duty to File a Will

It is illegal to harbor a person’s will. Illinois law imposes a duty to file on the person who possesses the will of a deceased person. This means that if you have someone’s will in your possession, then you must file it with the county clerk of court upon that person’s death. If you fail to do so, the court may compel production of the will.

Dire consequences await anyone who willfully hides a will after learning of the testator’s death or willfully alters or destroys it without the testator’s permission. (The testator is the person who wrote the will.) The law classifies such acts as a Class 3 felony, punishable by two to five years in prison and a $25,000 fine.

Deciding how to bequeath your property is an important decision. Do not leave a paper trail that might result in unwelcome bequests. An experienced wills attorney can ensure that your wishes are met. Additionally, if a testator has entrusted his or her will to you, be sure to follow the proper legal procedures. If you are uncertain of what the law requires contact us today. We can assist those in the Naperville area.