no need to leave your home to receive legal consultations and services - Call or click to learn more about phone and videoconferencing with our attorneys

Illinois Probate: Does All Property Need to go Through Probate?

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
November 1, 2019

The question of whether or not all property is subject to probate is often asked once someone has passed away. In this article, we explain what probate is, when probate is required in Illinois, what it means for an asset to be subject to probate, and what types of property do not need to go through probate in Illinois when their owner passes away.

what does it mean for an asset to be subject to probate?

What is Probate?

Probate is a court case in which the court oversees the executor’s gathering of the assets of the deceased individual and the distribution of those assets to creditors, beneficiaries, and heirs.  Probate is not required for every estate.  For some foundational information about probate, check out our previous article: What is Probate?: An Introduction to Probate in Illinois.

What Does it Mean for an Asset to be Subject to Probate?

An asset must go through probate if both:

  1. probate is necessary for the particular estate; and
  2. The particular asset was held in such a manner that it is considered part of the probate estate.  

If an asset is required to go through probate, this means that the distribution of that asset to creditors and/or heirs must be accomplished within the probate case, under the supervision of the court, and in accordance with the formalities of Illinois probate procedure.  If an asset is not required to go through probate, it may be distributed immediately and directly to the beneficiary without the need for probate formalities.  

What Types of Assets Do Not Have to Go Through Probate?

There are some cases in which a deceased person’s property does not have to enter a formal probate proceeding. This occurs if the total value of the person’s estate is less than $100,000 and doesn’t include any real estate. In this instance, people who will inheriting the assets can use a simple Small Estate Affidavit to claim inheritance.  For more detail on when probate is required, check out: When is Probate Necessary in Illinois?

Even if a probate case is necessary, certain assets may not be considered part of the probate estate and therefore do not need to go through probate.  These include:

·     Assets held in trust, such as a revocable living trust meant to avoid probate;

·     Jointly titled property with a right of survivorship;

·     Assets that are payable on death to a named beneficiary;

·     Real estate that is subject to an Illinois transfer-on-death deed.

Does Property Held in Trust Go Through Probate?

When property is held in a trust, it is not subject to a formal probate proceeding. Although the  person who created the trust may have for all intents and purposes been the owner of the property, property held in trust is technically owned by the trust.  Therefore, trust assets do not become a part of the deceased person’s probate estate.  Trust assets are passed to beneficiaries of the trust according to the terms of the trust outside of probate, not according to the deceased person’s will.  

Does Jointly Titled Property Go Through Probate in Illinois?

Does Jointly Titled Property Go Through Probate in Illinois?

Jointly titled property with a right of survivorship is property that is jointly owned between the deceased individual and another person and which grants the survivor between the two the right to automatically inherit the other’s share.  This is most commonly seen in real estate owned by a husband in wife.  In the context of real estate, the deed will explicitly state that the property is owned in joint tenancy with right of survivorship or in tenancy by the entirety (a special type of joint tenancy only available to married couples).  Jointly titled property with right of survivorship passes directly to the survivor without becoming part of the deceased individual’s probate estate.  

Do Payable on Death Accounts Go Through Probate in Illinois?

Some accounts, such as retirement accounts, life insurance policies and additional investment accounts, with a named beneficiary are not property eligible to go through a probate proceeding as long as the beneficiary is named and still living. Some financial institutions offer accounts that are “transfer on death.” This means that ownership of an account will automatically be transferred to the named beneficiary upon the original account owner’s death.  However, these types of accounts may default to the probate estate if the named beneficiary dies before the owner of the account and if no successor beneficiaries are listed.

Transfer on Death Deeds and Illinois Probate

Recently, Illinois has introduced a transfer-on-death deed for real estate. This was designed to avoid probate and any disputes among who should become the owner of the real estate, and to facilitate a quick transfer of the property.

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

do you have to do probate when someone dies?

Need Legal Help? 

Schedule a

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.

Leave a Comment With Your Questions

Read more about

Probate & Estate Administration

We offer free, paid & Online CONSULTATION in:

Probate & Estate Administration

Schedule a consultation with our Illinois & Iowa Attorneys

We offer free, paid & online consultation in nearly every area of law throughout Illinois and Iowa. We have a range of options to assist you with your legal needs.

What happens at a legal consultation?
Meet with an attorney for a free consultation to discuss what type of matter you need to discuss with an attorney.
Over the Phone Legal Consultations
Similar to In-person consultations, you discuss your legal needs with our attorneys to discuss your matter.
An online consultation is like an in-person and an over the phone online Consultation. You meet face to face with our attorneys through our online portal.
Paid Legal Consultations
While a free consultation allows us to discuss what we can do in general terms for your legal matter, a paid consultation allows us to answer direct questions.

More Illinois Probate & Estate Administration Law Episodes

contact us

Monday to Friday
9am - 5pm

Contact Us
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a free consultation for legal advice specific to your situation.

Here are some articles that may interest you
Schedule a

Contact us for a Free Consultation

Schedule a free consultation

O'Flaherty Law is happy to meet with you by phone or at our office locations in:

Who We Are
We are your community law firm. Our Illinois & Iowa Attorneys are committed to providing exceptional client service in a cost-effective manner in the areas of Family Law, Probate, Estate Planning, Civil Litigation, Guardianship, Criminal Defense, Corporate & Contract Law, Bankruptcy and Real Estate.

Some of Our Accomplishments

Best Child Support Lawyers in Chicago
DuPage County Probate Attorney
Kevin P. O'Flaherty
Rated by Super Lawyers

loading ...
Naperville attorney
DuPage County Probate Attorney

Subscribe to our mailing list

* indicates required