Why file the last will and testament?

Many clients with whom you consult may be surprised to learn that Illinois law requires that the will of a decedent must be filed with the clerk of the circuit court shortly after the decedent's death (755 ILCS 5/6-1). That provision reads:

Duty to file will — altering, destroying or secreting.

(a) Immediately upon the death of the testator any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will, subject to the provisions of Section 5.15 of the Secretary of State Act.
     
(b) If any person wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for the period of 30 days after the death of the testator is known to him, the person so offending, on conviction thereof, shall be sentenced as in cases of theft of property classified as a Class 3 felony by the law in effect at the date of the offense. The 30-day period does not apply to the Secretary of State when acting pursuant to Section 5.15 of the Secretary of State Act.

You may advise the client to go ahead and file the will, or you may offer to do so for the client.  The client may ask why the law requires the filing of the last will and you can respond with some of the reasons given in Illinois court cases.
 
According to the Illinois Supreme Court in Boryca v. Parry, 24 Ill. 2d 320 (1962), the filing of the will promptly can diminish or eliminate the chance of personal gain by someone withholding the last will from being filed.  Additionally, the prompt filing of the will of the decedent can diminish or eliminate the chances of defeating the testator's intent, through the possible loss or waste of probate property that was intended to be passed by the will.
 
In Nolin v. Nolin, 68 Ill. App. 2d 54 (3rd Dist.), the third district stated that the filing of the last will promptly is not only required by statute, but is done to help reduce the risk of the original will being altered, which would create a fraud upon the court and defeat the testator's true intent. 
 
Additionally, you may tell your client, that the nominated executor, if he or she does not promptly file the will, could lose his or her priority to be appointed executor under the will, and such a situation could occur and create problems if there is any family disharmony. (755 ILCS 5/6-3) 

Duty of executor to present will for probate

(a)  Within 30 days after a person acquires knowledge that he is named as executor of the will of a deceased person, he shall either institute a proceeding to have the will admitted to probate in the court of the proper county or declare his refusal to act as executor. If he fails to do so, except for good cause shown, the court on its motion or on the petition of any interested person may deny him the right to act as executor and letters of office may be issued by the court as if the person so named were disqualified to act as executor.

Years ago, there was a daily penalty for not filing the will promptly. There is criminal liability for altering or secreting the will.
 
So, when advising the client to get that will filed, even if it is the will of a family member who died months or years ago, you can explain why the law is the way it is.

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November 2018Volume 10Number 1PDF icon PDF version (for best printing)