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This article will give a brief overview of any changes to Illinois Living Trust Laws for 2023. Furthermore, this article will review what living trusts are in Illinois.

This article will give a brief overview of any changes to Illinois Living Trust Laws for 2023. Furthermore, this article will review what living trusts are in Illinois. Illinois Governor J.B. Pritzker signed about 200 bills into law for 2022, including many pertaining to estate planning and probate laws.   

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What Are Living Trusts?  

An "inter vivos" trust is a trust that is created during the lifetime of the settler of the trust. The settlor designates beneficiaries of the living trust and will receive the property in trust upon the settlor's death. One advantage of living trusts is that upon the settlor's death, the trust avoids probate, which could be a lengthy and expensive process because it involves court involvement. There are two commonly utilized inter vivos trusts:  

1. Revocable Living Trusts: as the name suggests, these trusts can be changed or revoked at any time

  • The settlor of the trust is usually named the trustee of a revocable trust.
  • The trustee of a revocable trust retains control of the trust property during their lifetime.  
  • Revocable Living Trusts will also name a successor trustee that will handle the trust property distribution to the beneficiaries upon the trustee's death.  
  • Revocable Living Trust does not need to be witnessed to become effective.  
  • Revocable Living Trusts become Irrevocable Trusts upon the death of the settlor.  

2. Irrevocable Living Trusts: this type of living trust cannot be changed or revoked once the trust instrument is signed.    

  • The settlor of the Irrevocable Trust does not maintain control over the property transferred to the Irrevocable Trust.    
  • Irrevocable Living Trusts can be useful to reduce taxes.  

Do I Still Need A Will If I Have An Inter Vivos Trust?

Inter vivos trusts are excellent instruments for passing on property that is properly transferred to the inter vivos trust. However, there are some things that an inter vivos trust cannot be used for. An inter vivos trust cannot be used to designate a guardian for the settlor's minor children. A will can be the proper instrument to name a guardian for the settlor's minor children.  

A will is also useful if the property wasn't properly transferred to the inter vivos trust. This is a common mistake that many settlors and trustees of an inter vivos trust make. They will often neglect to transfer property deeds to the inter vivos trust. Sometimes the settlors and or trustees will purchase or inherit property after creating an inter vivos trust and fail to transfer the property into the inter vivos trust. A will is a valuable estate planning tool to distribute property that was not transferred into the inter vivos trust.  

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What New Laws In 2023 Will Affect Living Trusts In Illinois?  

There haven't been any drastic revisions to Living Trusts in Illinois for 2023. There have been sweeping changes in laws due to the global COVID-19 pandemic that affect how certain Living Trusts can now be executed.  

The Electronic Wills And Remote Witness Act  

Public Act 102-167 was passed in response to the COVID-19 pandemic, allowing for probate of electronic wills and wills that were witnessed over telecommunication means, such as Zoom, for such purposes. The act also allows for documents other than wills to be executed and witnessed through Zoom and other telecommunication services. This change impacts Irrevocable Living Trust instruments, as a witness is required to make the Irrevocable Trust effective. This act comports with drastic change in the legal landscape as the COVID-19 pandemic is entering its second year of impairing traditional face-to-face meetings and in-person court sessions.  

Though 2023 did not substantially revise Illinois Living Trusts, the new law permitting remote witnesses is a significant change to reduce face-to-face meetings. Even though there haven't been extensive changes to Illinois Living Trusts, a review of the types of Living Trusts is helpful.

If you have any further questions, don't hesitate to get in touch with our experienced estate planning attorneys at (630) 324-6666 or by filling out our confidential contact form.

Posted 
December 1, 2022
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