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Wills vs. Trusts in Illinois | Should I have Trust Instead of a Will?

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

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):

  • Probate: Probate 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 estate will still go through probate, the executor’s surety bond can be waived
  • Distribution: Assets are distributed according to decedent’s wishes
  • Guardianship: Ability to name a guardian for minor children
Advantages of a trust over a will

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 purposes.
  • 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 claims period from two years to six months – For professionals who have personal exposure for their work, probating may be desirable.
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Wills vs. Trusts in Illinois | Should I have Trust Instead of a Will?

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