How to Confirm an Original Will in Illinois

Detailed Answer

This section explains, in plain language, how to determine whether a will you have is the original document under Illinois law and what to do if you only have a copy. This is general information only and not legal advice.

What the court normally wants

For probate in Illinois the court will ordinarily want the original will, because the original shows the testator’s (the person who made the will) actual handwritten or ink signature and the witnesses’ signatures. The original helps the court determine the document’s authenticity and whether it was properly executed.

Key things to inspect on the document

• Signatures in ink: An original will typically contains the testator’s original signature in ink (or another permanent medium). Look for pressure/indentation from pen strokes and variations in ink color that indicate handwritten signing.
• Witness signatures: Illinois requires (unless certain exceptions apply) that a will be signed in the presence of at least two subscribing witnesses. An original will usually has the witnesses’ original signatures near the testator’s signature or on the signature page.
• Self-proving affidavit / notary jurat: Many Illinois wills include a self-proving affidavit (a sworn statement signed by the testator and witnesses before a notary). A notarized jurat or stamp and the original notary signature strongly suggest the document you hold is an original.
• Physical signs of originality: Feel the paper for pen impressions, check for original notarizations or embossed seals, and look for pages that are stapled or bound in a way consistent with a single original document. Copies often have uniform toner or ink without the depth of a pen stroke.
• Attestation clause: Many wills include a clause near the end that states the document was signed before two witnesses. The clause itself isn’t proof of originality, but it tells you what to look for.

If you only have a copy

If you find only a photocopy, scan, or photo of a will, do not alter it. Keep it in a secure place and start the search for the original: ask the decedent’s attorney, check home safes, safe-deposit boxes, safety deposit records at banks (with proper court process), review file cabinets, check with close family, and look for attorney correspondence referring to a stored original.

Under Illinois law, a copy of a will can sometimes be admitted to probate when the original was lost or destroyed, but a person seeking admission of a copy must follow the statutory procedure. The probate court will require satisfactory proof that the decedent executed the will and that the original was lost or destroyed without the proponent’s (the person asking the court to admit the copy) fault. You will likely need witness testimony or other evidence about execution and loss.

Refer to the Illinois Probate Act for the rules that govern how wills are executed and proved. See the Probate Act of 1975 (755 ILCS 5) for the statutory framework governing will execution and proof in Illinois: 755 ILCS 5 — Probate Act of 1975. For details on execution and proof of wills, see the statutory sections discussing execution and proof (for example, execution and attestation requirements and procedures for proving lost or destroyed wills): 755 ILCS 5/6-2 — Execution of wills and 755 ILCS 5/6-4 — Proof of wills and self-proving affidavits.

Practical steps you should take now

1. Don’t alter the paper copy: Do not sign, initial, fold, erase, or otherwise change anything on the document.
2. Photograph the document: Make dated photographs or scans to document what you found, but keep the original safe and secure.
3. Search likely places: Contact the decedent’s lawyer, check safes and safe-deposit boxes, review personal files, and ask family members where the original might be stored.
4. Preserve chain of custody: Note where and when you found the document and who had access; this can matter if the document’s authenticity is contested.
5. Locate witnesses: If possible, identify and preserve contact information for people who saw the testator sign the will or who were present around the time it was signed.
6. Talk to a probate attorney: An attorney can advise whether the document appears to be an original and can help you petition the court to admit a copy if the original cannot be found.

How the court treats originals vs copies — brief overview

When the original is produced, the court will typically admit it if it appears properly executed. If only a copy is available, Illinois law provides a procedure for admitting the copy, but the person asking the court to admit the copy must present proof of execution and proof that the original was lost or destroyed (or otherwise unavailable) through no fault of the proponent. The burden of proof can be significant if interested parties oppose admission of the copy.

Short hypothetical to illustrate

Hypothetical: You find a two-page typed document in a home file marked “Last Will,” signed in blue ink by the decedent and by two witnesses. The bottom of the signature page shows a notary jurat with a stamped notary seal and the notary’s original signature. These features strongly suggest you have an original. If instead you only have a photocopy showing signatures, you should preserve it, ask the decedent’s attorney and bank about the original, identify witnesses, and consult a probate attorney about petitioning the court to admit the copy if the original cannot be located.

When to get legal help: If you cannot locate an original; if someone contests the will’s authenticity; if you find multiple purported originals or conflicting copies; or if you find a will that appears to have been altered — contact a probate attorney promptly. An attorney will explain filing a petition to admit a copy, subpoenas to banks or attorneys, and witness affidavits required in Illinois courts.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It is not a substitute for consulting a licensed Illinois attorney about your specific situation.

Helpful Hints

• Always keep the original will secure; copies cannot fully replace the original for probate purposes.
• If the will includes a notary jurat or is “self-proved,” it is easier to admit to probate without live witness testimony.
• Document where and how you found any will-related papers — that record may be useful later.
• Do not throw away any documents from the decedent’s files; small papers (post-its, envelopes) can provide context.
• If the original is in a safe-deposit box, banks usually require a court order or a co-tenant to open it — an attorney can help obtain what’s needed.
• Act quickly; delays can make evidence harder to locate and memories of witnesses fade.