Assuring your Trust and Will is NOT Invalid

DISCLAIMER: This blog post should not be construed as legal advice.

Estate planning is a crucial step in protecting your legacy and ensuring your assets are passed on according to your wishes. Two of the most commonly used estate planning tools are wills and trusts. While their purposes can overlap, each comes with specific legal requirements especially when you factor in state-specific laws.

Below is an overview of the basic legal requirements for wills and trusts in Illinois, Florida, and Indiana.

WILLS: STATE-BY-STATE REQUIREMENTS

Illinois

Under the 755 ILCS 5/ Illinois Probate Act, for a will to be valid, it must:

• Be in writing.

• Be signed by the testator (the person making the will) or by someone at their direction in their presence.

• Be witnessed by two credible witnesses, who must also sign the will in the testator’s presence.

• The testator must be 18 years or older and of sound mind.

Note: Illinois does not recognize holographic (handwritten and unwitnessed) wills or nuncupative (oral) wills.

Florida

According to Florida Statutes § 732.502, a valid will must have:

1. Testator’s Signature

• The will must be signed at the end by the testator OR

• The testator’s name must be subscribed at the end of the will by another person, in the testator’s presence and by the testator’s direction.

2. Witnessing Requirements

• The testator must sign the will or acknowledge:

  • That they previously signed the will, or

  • That another person subscribed their name to it, in the presence of at least two attesting witnesses.

3. Witnesses’ Signatures

• The attesting witnesses must sign the will in the presence of the testator and of each other.

Other Florida Provisions

Florida does not recognize holographic or nuncupative wills, even if valid in another state. A handwritten will is valid only if it complies with the above formalities—i.e., is properly signed and witnessed. Wills executed by nonresidents of Florida are considered valid in Florida if they were valid under the laws of the state or country in which they were executed. A military testamentary instrument executed in accordance with 10 U.S.C. § 1044d is also valid. No specific wording is required—substance matters less than proper execution. Codicils (amendments to wills) must be executed with the same formalities as wills.

Indiana

Under Indiana Code § 29-1-5, a will must:

• Be in writing.

• Be signed by the testator or someone on their behalf in their presence and at their direction.

• Be witnessed by two competent witnesses, who sign in the presence of the testator.

• The testator must be 18 years old and of sound mind.

Note: Indiana allows for self-proving wills with a notarized affidavit, which can simplify probate.

TRUSTS: GENERAL LEGAL REQUIREMENTS IN ALL THREE STATES

Legal Requirements for a Trust by State

Illinois – Illinois Trust Code (760 ILCS 3/402)

The Illinois Trust Code, effective January 1, 2020, governs the creation and administration of trusts in Illinois. According to Section 402, a trust is valid and enforceable only if it meets all of the following requirements:

Legal Requirements for Creating a Trust in Illinois

1. Capacity of the Settlor. The settlor (also called the grantor) must have legal capacity to create a trust. Generally, this means being at least 18 years old and of sound mind.

2. Intent to Create a Trust. The settlor must clearly indicate an intention to create a trust. This can be expressed in writing or, in rare cases, orally—though a written instrument is strongly preferred.

3. Definite Beneficiary or Permitted Alternative Purpose. A trust must have a definite, ascertainable beneficiary, unless it is:

   • A charitable trust;

   • A pet trust under Section 408;

   • A noncharitable purpose trust under Section 409.

4. Trustee with Duties. The trust must name a trustee who has actual duties to perform. A trust cannot be created if the trustee is merely a placeholder or inactive.

5. Separation of Trustee and Beneficiary. The same person cannot be the sole trustee and the sole beneficiary, as this would collapse the trust and merge legal and equitable title.

   
   

Additional Clarifications:

A beneficiary is considered definite if they can be identified now or in the future, subject to the rule against perpetuities. A trustee may be granted the power to choose a beneficiary from an indefinite class, but if this discretion is not exercised within a reasonable time, the trust property reverts to those who would have taken it otherwise.

Florida – Florida Trust Code (Fla. Stat. § 736.0402)

Under Chapter 736 of the Florida Trust Code, a trust is valid and enforceable only if it meets the following statutory requirements, as outlined in § 736.0402:

Legal Requirements for Creating a Trust in Florida

1. Settlor’s Capacity. The settlor must have the legal capacity to create a trust, which generally means being at least 18 years old and of sound mind.

2. Intent to Create a Trust. The settlor must indicate a clear intention to establish a trust. This intention is typically stated in a written trust instrument.

3. Definite Beneficiary or Permitted Purpose. A trust must have a definite or ascertainable beneficiary, unless it is:

   • A charitable trust;

   • A pet trust, as authorized by § 736.0408;

   • A noncharitable purpose trust, under § 736.0409.

4. Trustee with Duties. The trust must designate a trustee who has enforceable duties to perform. A nominal or inactive trustee does not satisfy this requirement.

5. Separation of Legal and Equitable Title. The same person may not be both the sole trustee and the sole beneficiary, as this would merge legal and equitable interests and terminate the trust.

   
   

Additional Provisions:

A beneficiary is considered definite if they can be identified now or in the future, within the limits of any applicable rule against perpetuities. A trustee’s discretionary power to select a beneficiary from an indefinite class is valid. Similar to Illinois, if that power is not exercised within a reasonable time, the interest defaults to those who would have inherited in its absence.

Indiana – Indiana Trust Code (Ind. Code § 30-4-2-1)

Under Indiana Code § 30-4-2-1, the creation of a valid and enforceable trust in Indiana, whether for real or personal property, requires specific legal elements. These rules ensure that the trust is intentional, verifiable, and administratively sound.

Legal Requirements for Creating a Trust in Indiana (2024 Update)

1. Written Evidence of the Trust. A trust is enforceable only if there is written evidence of its terms, signed by:

   • The settlor (creator of the trust), or

   • The settlor’s authorized agent, or

   • A qualified adult signer who:

     • Signs at the settlor’s direction,

     • In the direct physical presence of the settlor, and

     • Is not a relative, a named trustee, or a beneficiary of the trust.

2. Definite and Ascertainable Terms. The trust document must clearly define:

   • The trust property (even if contingent or future property),

   • The trustee and the nature of their duties,

   • The beneficiaries, and the nature of their interests,

   • The purpose of the trust.These must be ascertainable with reasonable certainty.

3. Trust Property Not Required to Be Immediately Present. Indiana allows a trust to be valid even if it holds only future or contingent interests, such as:

   • Proceeds from an estate,

   • Life insurance benefits,

   • Retirement plan assets or IRAs.

4. Valid Beneficiaries. A trust is valid if:

   • The beneficiaries are identifiable now or in the future, or

   • The trust is created for a pet (§ 30-4-2-18) or a noncharitable purpose (§ 30-4-2-19).

5. Discretionary Powers to Select Beneficiaries. A trustee’s power to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the property passes to those who would have inherited without the power.

6. Creation via Power of Appointment. A trust may also be created by exercising a power of appointment in favor of a trustee.

   
   

No Specific Wording Required

While no particular formal language is required, the trust must still satisfy the statutory requirements for clarity and enforceability.

While the core elements of trust creation are similar across Illinois, Florida, and Indiana, there are nuanced differences, especially in formalities like writing, delivery, and testamentary treatment. To ensure your trust complies with all applicable laws and achieves your estate planning goals, it's essential to work with an experienced estate planning attorney familiar with your state’s trust code.

Do You Need Both a Will and a Trust?

In many cases, yes. A trust can manage assets during life and avoid probate, while a will can handle matters a trust can’t such as naming guardians for minor children or catching any “leftover” assets not transferred to the trust (via a “pour-over will”).

The requirements for creating a valid will or trust vary depending on the state, and small mistakes like missing witness signatures, can lead to disputes or render your plan invalid. Whether you reside in Illinois, Florida, or Indiana, working with a qualified estate planning attorney ensures that your documents meet all legal standards and your legacy is protected.

Need help getting started? If you're in Illinois, Florida, or Indiana, qw offer estate planning services tailored to your goals, whether you're buying your first home, starting a business, or building your legacy.

Contact us to schedule a consultation and take the first step toward protecting what matters.