Detailed Answer
Under Illinois law, a valid will must meet specific execution requirements. Notarization is optional; it only makes a will “self-proving,” which speeds up probate. However, the Illinois Probate Act mandates two credible witnesses for a will to be valid. A document signed by the decedent without any attesting witnesses generally cannot be admitted to probate.
1. Will Execution Requirements (755 ILCS 5/4-1)
By statute, a will must be in writing, signed by the testator (the person making the will), and witnessed by at least two credible witnesses who sign in the testator’s presence. See 755 ILCS 5/4-1. Notarization is not required for validity; it only creates a self-proving affidavit under 755 ILCS 5/4-5.
2. No Witnesses: Inability to Probate
If a will lacks two attesting witnesses, Illinois courts will generally refuse to admit it. Absent compliance with the formalities in 755 ILCS 5/4-1, the document is invalid as a will.
3. Lost or Destroyed Wills (755 ILCS 5/6-4)
If an original will was executed properly but is lost or destroyed, you may file a petition to admit a copy. Under 755 ILCS 5/6-4, you must present a copy of the will and proof, by at least one credible witness, of the testator’s signature and testamentary intent. Note: This remedy applies only when a properly witnessed original has been lost—not when the original lacked witness signatures.
4. Practical Steps If You Have an Unwitnessed Document
- Review the document: Confirm whether there are any signatures of witnesses. Even one witness who saw the testator sign can help in a lost-will proceeding.
- Locate witnesses: Find any persons who observed the testator sign or acknowledged the document as their will. A credible witness’s testimony may salvage a lost original.
- Consult a probate attorney: An attorney can assess whether a will-proving petition or guardianship approach might apply in limited cases.
Disclaimer: This article is for educational purposes and does not constitute legal advice. For advice specific to your situation, consult a licensed Illinois attorney.
Helpful Hints
- Notarization alone does not validate a will without two witnesses.
- Illinois does not recognize holographic (handwritten only) wills.
- Self-proving affidavits save time but are not required for probate.
- Keep original wills in a safe place and inform trusted individuals of their location.
- If you suspect a will is invalid, act quickly—Illinois imposes a one-year limitation to contest a probate proceeding (755 ILCS 5/5-4).