Wills and Trusts in Illinois
How Do Wills and Trusts Work?
Wills and trusts ensure that the assets of your Illinois estate become distributed the way you imagined after you pass away. While this may not be the most pleasant thing to think about, it’s necessary to prevent complications or create disputes among your loved ones. So how do wills and trusts work? Well, while an estate planning attorney isn’t required to write a will or create a trust, you may find their advice invaluable to the process. Either document has to meet the criteria for the state, and a will and trust attorney can ensure that you’ve dotted the i’s and crossed the t’s.
Trust vs Will
Wills and trusts play a role in ensuring the distribution of your estate after you pass away, but they have different approaches and functions. How do wills and trusts work in Illinois? A will is a legally binding document that describes what assets you have, who you want them to go to, and how that should occur. A trust creates a financial relationship between parties that handles the transfer of savings, property, or investments. The two often work together as critical parts of your entire estate planning strategy.
How to Create a Will or Trust in Illinois
Identify Assets
Creating a will or trust begins with accounting for every asset in your estate, including property, investment accounts, or business ownership. An experienced estate planning attorney can better help you navigate this process. Once you have confidence that you understand what needs distribution, you can do so with clear goals in mind.
Choose the Distribution
While you want a clear explanation of how your assets should be distributed among loved ones, it’s also important to consider assets beyond your control. A life insurance policy or a 401k may have designated beneficiaries who are not mentioned in your documentation.
Choose the Executor of your Illinois Will or Trust
The executor of your will or trust takes on the legal responsibility to execute your wishes. While it’s a given that you want to choose someone you can trust, it’s worth considering your attorney or an accountant for the job. A reliable trust attorney or will attorney can better help you navigate this process, and inform your decisions.
The Probate Act of 1975 also defines a personal representative as an executor, administrator, or guardian. The individual who assists in executing probate is usually a close family member. However, estates without a petition may have a personal representative appointed by the court.
Choose a Guardian
Unless you want the court to appoint a guardian, it’s best to choose one for your dependents. Then, name them as such in the will.
Sign with Witnesses
After you have reasonable confidence that everything is in order, it’s time to make the document official. To make the will or trust legal, you and witnesses should sign the document. An experienced estate planning attorney can better help you navigate this process, and ensure the validity of your will or trust.
Update and Create your Will or Trust as Necessary
You may feel locked into your will after all the preparation. But you don’t have to feel completely married to your decisions. If circumstances change in your life or you change your mind, don’t hesitate to make changes to ensure your final wishes are clear and carried out properly.
Illinois law provides five different ways to revoke your will. The options include:
- Tearing, burning, canceling, or obliterating it yourself
- Having another person destroy the document
- Creating a new testamentary that revokes the older version of the document
- Making a new will that states its contradictory
- Writing a separate statement that says you’re revoking an older testament
The Different Types of Wills in Illinois
Simple Will
As the name suggests, a simple will meets the basic requirements but it remains subject to probate after your death. This document is an essential outline of how you would like your assets distributed by an executor for designated beneficiaries, pets included. As always, consulting with a trust attorney is your best option when it comes to designing your estate plan.
Joint Will
A joint will is created by two individuals, usually a married couple, that details how assets are distributed upon one or both passing away. While this is a single document, legally it can be treated as two separate entities.
Living Will
It may sound obvious that a will is written while you’re alive. However, this type of legal document establishes directives to medical providers regarding your wishes for end-of-life care. If you are incapacitated and cannot express your desires, this tells doctors and nurses your preferences in advance. This type of will typically does not include beneficiaries after your death and serves this sole function.
Holographic Will
Whether it’s written on a napkin or a regular piece of paper, a holographic will is a handwritten-only document signed by the testator. Most states require witnesses to sign a testament to validate an individual’s intentions. However, these may be legally valid especially when created during emergencies.
Illinois law does not recognize the validity of holographic wills for estates going through probate. A testamentary needs the testator’s signature along with at least two other witnesses’ signatures. Everyone involved should be over the age of 18 and of sound mind.
Pour-Over Will
A pour-over will is testamentary and creates a trust and specifies the property that will be transferred after someone passes away. This acts as a safety measure that can transfer assets to an account that might not have been transferred otherwise.
The Different Types of Trusts in Illinois
Irrevocable Trust
This type of trust is irrevocable, meaning it cannot be altered or terminated without the consent of the beneficiaries. Once established, it legally transfers ownership of the assets, with the grantor relinquishing all control. While this structure can provide substantial tax benefits, it also comes with potential drawbacks depending on your specific situation.
Revocable Trust
This trust gives the flexibility necessary for the grantor to make modifications until they pass away. If you need the funds in a trust for living expenses while living, this can provide a solution. One that still distributes an estate as desired.
Family Trust
People choose to create this type of trust to care for their family members after they’re gone. This provides an opportunity for you to have peace of mind that children, siblings, or extended family members have access to the share of the assets you have designated.
Charitable Trust
If you wish to leave a philanthropic legacy behind while taking care of your family and loved ones, a charitable trust might be the right choice for you. Some individuals choose to leave behind ownership in a business, stocks, or real estate if they have the means to do so.
How to Avoid Probate in Illinois
States may have similarities in how they handle the distribution of assets that go to probate. But as always, the devil is in the details. However, in most states, probate is required. Unless an estate is particularly small, and doesn’t concern the transfer of real property. An experienced will and trust or estate planning attorney can better help you navigate this process.
A lawyer can resolve an estate with a simple affidavit for estates worth less than $100,000 under current Illinois law. If the decedent owned property in their name alone or had over this amount in assets, then formal probate may begin. The court will assign a personal representative to assist in the proceedings. This individual will have to pay debts for the estate, including taxes, but without personal liability. However, they will have a legal obligation to act in the best interests of the estate.
Work with an Experienced Illinois Estate Planning Will and Trust Attorney
Planning for your eventual death is not a pleasant task. Along the way, you are bound to wonder how wills and trusts work in Illinois? How can I make this process easier? It is tedious, but it’s crucial to ensure that your family and legacy are secured. The law does not require an individual to hire a trust attorney or will lawyer, but they can prove invaluable if they catch issues that could result in your estate going to probate. If you feel like you need help, it’s worth your time to consider hiring an experienced estate planning attorney. We can even help you connect with legal help across Illinois state lines.
Submit a request or call us today at (866)-345-6784 to speak to a local will and trust attorney!
About the Author
Aaron is a professional legal writer with a B.S. in English Education from Southern Illinois University – Carbondale. He has written, published, and edited thousands of legal articles for RequestLegalHelp, which has connected over 5 million people to legal help in the United States.
With over five years of experience writing thousands of legal articles for law firms across the U.S. and Canada, Aaron specializes in covering federal, state, and city-level legal issues ranging from auto accidents to wrongful terminations. Contact Aaron at [email protected] for article suggestions, collaborations, or inquiries.
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