What is Probate?

Can You Avoid Probate By Having a Will in Illinois?

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we will answer the question, “can you avoid probate by having a will in Illinois?”  We will explain what probate is, when probate is required in Illinois, why it is preferable to avoid probate if possible, and how a proper estate plan can be used to ensure that probate is not necessary.  

What is Probate?

Probate is a legal case that is sometimes required to allow the executor or administrator of a deceased individual’s estate to collect the assets of the deceased individual (known as the “decedent”) and distribute them to creditors, beneficiaries, and heirs.  For more, check out our article: What is Probate?

Why is Probate Bad?

Probate is not always bad, but in a lot of situations it make sense to avoid it if possible.  In a probate case, the executor must give notice to creditors and heirs.  Creditors then have 6 months to file claims with the executor and/or the court.  Other interested parties will also have the opportunity to oversee and potentially challenge the executor’s actions.  To this end, the executor must prepare reports for creditors and heirs showing which assets were collected and how they will be distributed.  

In some situations, the heightened oversight by interested parties and the court is a good thing.  In complex or contentious estates, a probate case can ensure that everyone involved receives the benefit that they are entitled to from the estate and that the executor handles the estate properly.  

On the other hand, because of the 6 month period for creditors to file claims, probate cases tend to take at least a year.  During this time, the beneficiaries of the estate may not have access to the assets that they are ultimately entitled to inherit.  Having an attorney handle the case is also advisable.  Court costs and attorney fees therefore consume some of the estate assets.  Finally, probate takes a lot of effort from the estate executor and administrator and can be a stressful process.  

Estates that do not go through probate can be distributed immediately and often without an attorney.

When is Probate Required in Illinois?

Probate is typically required in Illinois whenever an individual passes away with any real estate that is not owned by a trust or owned jointly with a living spouse or with more than $100,000.00 outside of a trust or accounts that are directly payable on death to a living beneficiary.

For more, check out our article, When is Probate Required in Illinois?

Is Probate Required if I have a Will?

Wills are great for making sure that you have a guardian named for your minor children and for ensuring that if your estate goes through probate a person you trust will be the executor in charge of distributing your assets.  They will also ensure that your assets are distributed according to your wishes in a probate case.  However, wills do not allow your estate to avoid probate.  Wills are essentially instructions on how you wish your probate case to be handled.

How Does an Estate Plan Allow Your Estate to Avoid Probate?

The estate planning document that ensures that your estate will avoid probate is not a will, but rather a revocable living trust.  

A revocable living trust allows its creator (the “grantor”) to create a legal entity that can own nearly any sort of property.  During the grantor’s lifetime the grantor is both the trustee (the person responsible for managing the trust assets) and the beneficiary of the trust.  This means that during the grantor’s lifetime, he or she will not give up any power over the trust assets or even suffer any inconvenience due to the fact that the assets are held in trust.  

When the grantor passes away, any assets owned by the trust will not be part of the grantor’s probate estate.  Instead, the successor trustee, who is listed in the trust as the person responsible for managing trust assets when the grantor is unable to do so, will be able to immediately begin administering the trust according to the grantor’s wishes as stated in the trust.  

Sometimes this means distributing them to beneficiaries of the trust.  In this case, the assets can be distributed immediately without the need for a probate case.  In other cases, the trustee will manage the assets until such time as the terms of the trust call for the distribution, such as when the beneficiaries reach a certain age.  

If you have a revocable living trust as part of your estate plan, your estate will not go through probate as long as you don’t own any real estate outside of the trust and you own less than $100,000.00 outside of the trust and outside of payable on death accounts.  In these cases, any assets outside of the trust can be dealt with by the trustee outside of probate through the use of a Small Estate Affidavit.

Learn more: How to Avoid Probate With Revocable Living Trusts.

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