Providing for Children Born After Your Will Has Been Executed

 new baby, estate plan, lawyer, attorney, Illinois, wills, trustsPhilip Seymour Hoffman will be remembered as a talented actor and, sadly, for the tragic way that he died. But his sudden death shines a light on more than the dangers of illegal drug use. It also reminds us of the importance of planning ahead to provide for our families.

In 2004, Hoffman executed a will that created a trust for his oldest child. The remainder of his estate would go to his partner, Mimi O’Donnell. In the ensuing decade, Hoffman and O’Donnell had two more children together, yet he never revised his will. Because the will does not mention them specifically, the younger children might not receive the same benefits as their older sibling. While there are estate-planning laws that provide for such contingencies, it is much smarter to keep your will up-to-date to ensure that it reflects your wishes.

Illinois law provides for such a contingency. If a child is born to the testator (the person who made the will) after the will has been executed, that child will receive the portion of the estate to which he or she would have been entitled, if the testator had died without making a will. But that portion might not be equal to a bequest specified in the will for a sibling. Again, that is why it is important to make alterations as special events – weddings, births, etc. – occur.

How to Execute a Will

To execute a will initially, you must comply with these requirements:

  1.  You must be at least 18 years old and of sound mind;
  2. The will must be in writing;
  3. You must sign the will in the presence of two witnesses. Those witnesses cannot be beneficiaries of the will.

 After the will has been executed, you can change it by creating a separate document called a codicil. Like the will itself, a codicil must be in writing and signed by the testator in the presence of two non-benefiting witnesses. However, if you decide to make many changes, it might be better to revoke the original and execute a new will in its place. There are three ways to invalidate a will:

  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.
  2. Execute a new will stating that the original has been revoked. If the new will does not expressly state this, any part of the new will that is inconsistent with the original will come into effect.
  3. 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.

Note that once you revoke a will, it can be revived either by re-executing the original bequests, or by a written and signed statement (also witnessed by two non-beneficiaries) declaring the revival.

While Illinois law does not require you to write a will, doing so can give you peace of mind. Our estate planning attorneys have more than 30 years of experience and can help you make plans to provide for your family after you are gone. Contact us today. We can assist those in the Naperville area.