Three Tips to Avoid Probate in Illinois

Monday, December 12, 2022

Probate is the process in law of distributing one’s assets to designated beneficiaries. Probate also includes will verification and payment of all outstanding debts and taxes left behind by the deceased. Unfortunately for grieving loved ones, the probate process can be expensive and drawn-out, lasting for months or even years. For this reason, people often wonder how they can avoid the probate process. 

Fortunately, there are clear ways to avoid probate. Here are three of the basic estate planning tools you can utilize to keep your estate in the hands of the people who matter most.

Create a Living Trust

The simplest way to avoid probate is to create a living trust instead of a last will. A living trust places your assets and property "in trust” during your lifetime, where they are managed by a trustee for the benefit of your beneficiaries. This is different from a will, which simply transfers your assets after your death. The property and assets have already been distributed to the trust at time of death, allowing you to completely avoid probate. Living trusts may either be created as revocable or irrevocable. The state of Illinois does not use the Uniform Probate Code so it will likely be beneficial to create a living trust to avoid Illinois’ complex probate processes. Contact an estate planning lawyer to start the process if you are interested in creating a living trust. 

A living trust also allows you to avoid the cost of probating a will. When creating a living trust, you will likely avoid one of the biggest pitfalls of working with a last will: the cost of probating the will or passing it through the courts. In probate, court fees taken from the gross estate can oftentimes be as high as 10% of the total estate! Court costs are avoided all together with a living trust.

Hold Property Jointly 

Another effective way to keep your real estate assets out of probate is to hold your property jointly. If you and a family member or significant other are considering purchasing property or already own a home, joint ownership allows the property to pass automatically from the deceased to the surviving owner without having to go through probate. To put it simply, holding joint property allows the property to transfer directly to the surviving owner. During your lifetime, property deeds can be retitled to include a loved one whom you’d like to pass the ownership to after you pass away. 

Illinois’ Joint Tenancy with Right of Survivorship denotes that two people – typically a husband and wife but not always – co-own the property in equal shares. When one owner dies, the other co-owner automatically becomes the owner of the property, even if there is no will. This is defined as the right of survivorship. Of course, you’ll want to become familiar with the laws in your particular state regarding estate planning, joint tenancy, and probate before making any decisions. An estate planning attorney can help you to understand the laws and limitations in your area.

Name Beneficiaries on Your Accounts 

Another important way to avoid the long, complex probate process is to ensure that beneficiaries are named on your financial accounts. These can include retirement benefits, bank accounts, life insurance policies, and more. If your accounts denote a chosen beneficiary, your money in those accounts is directly transferred to said beneficiary at your time of death without undergoing probate. If you do not name beneficiaries on your accounts, the assets will likely be distributed (in a long process) according to Illinois intestacy laws.

Differences in state probate laws can lead to changes in the overall process and cost of probate depending on which state you’re in. State probate laws will also dictate if and when you can avoid the probate process entirely. It’s important to work directly with an estate planning lawyer when making these decisions, as they will be able to guide you through the estate planning process with the specified, localized knowledge you require. If you’re interested in planning your estate or have any questions about the process, contact the expert estate planners at Pavone Law Group. Our estate planning attorneys have decades of experience in probate and trust administration, and are ready to take your call at 630-424-1100. 

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