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Kevin O'Flaherty

Below is a breakdown of what you need to know about the features of wills and trusts. For a more in-depth discussion of the subject, please visit our estate planning resource page or view the video of our recent estate planning seminar, the remaining portions of which can be viewed on our YouTube page.

Consequences of Intestacy in Illinois (No Estate Plan):

  • ProbateProbate case must be opened

After opening the probate case with the court, the personal representative takes the following steps:

  • inventory and collect the decedent’s property
  • pay any debts and taxes
  • distribute the remaining property to the beneficiaries
  • Estate is diminished by attorney fees
  • Heirs do not have immediate access to assets
  • Bond: Executor must pay surety bond to probate court
  • Distribution: Assets are distributed according to state intestacy laws

Advantages of a Will over Intestacy

  • Waiver of Bond: Although the estate will still go through probate, the executor’s surety bond can be waived
  • Distribution: Assets are distributed according to the decedent’s wishes
  • GuardianshipAbility to name a guardian for minor children

Advantages of a Revocable Trust over a Will

  • Probate Avoidance: Any assets transferred to a trust during your lifetime will avoid probate at death
  • Diminished attorney Fees
  • Immediate access to assets
  • No need to appear in court or obtain court approval for payment of debts, distribution, and termination of the trusts
  • Disability Planning: A revocable trust allows a trustee to manage a disabled client’s trust assets without the need to resort to guardianship arrangements, which can be expensive
  • Confidentiality: Unlike a will, a living trust is not filed with the probate court when the client dies. Therefore, the details of the client’s estate plan do not become a part of the public record.
  • Protection from Renunciation: Under Illinois law, a surviving spouse may renounce a will and elect to take a third of the estate (half if there is no descendant after payment of creditors). Trust assets are not included in the estate for this purpose.
  • Financial Control:  By properly drafting your trust, you can ensure that the assets in question are distributed in a financially responsible manner to your heirs

Note: Wills DO have some advantages over trusts

  • Ability to Select a Fiscal Year: The estate can select a fiscal year, while the trust must be a calendar-year taxpayer.
  • Shortened Claims Period:  Probate shortens the claims period from two years to six months. For professionals who have personal exposure to their work, probating may be desirable.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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