As estate planning lawyers in Illinois, we understand how important it is to secure your legacy and protect your loved ones. One of the first decisions many people face is whether to use a trust, a will, or both in their estate plan. These legal tools each serve distinct purposes and can have a profound impact on how your assets are distributed after your death. Choosing the right tool depends on your individual goals, family dynamics, and financial situation.
In Illinois, wills are straightforward documents that outline how you want your property and assets distributed. Wills also allow you to name guardians for minor children. Trusts offer more flexibility and control, especially when it comes to managing assets during your lifetime and avoiding probate. Both options have their advantages, but they come with unique legal considerations. Let’s explore how these tools function and the factors that may determine which one is right for you.
What Is A Will?
A will is a legal document that takes effect upon your death and specifies how your assets should be distributed. In Illinois, wills must comply with state laws to be valid, including being signed by the testator and witnessed by at least two individuals (755 ILCS 5/4-3). Wills allow you to:
- Name beneficiaries for your assets.
- Appoint guardians for minor children.
- Designate an executor to handle the administration of your estate.
While wills are effective for most basic estate planning needs, they must go through probate, a court-supervised process that can be time-consuming and costly. Probate in Illinois is governed by the Illinois Probate Act of 1975 (755 ILCS 5/1-1). This process may work well for smaller estates but can create delays for larger or more complex ones.
What Is A Trust?
A trust is a legal instrument where you transfer assets into a separate entity, managed by a trustee, for the benefit of your chosen beneficiaries. Trusts are highly customizable and can address specific goals, such as minimizing taxes, protecting assets, or providing for loved ones with special needs. Unlike wills, trusts can take effect during your lifetime and avoid the probate process entirely.
In Illinois, trusts are governed by the Illinois Trust Code (760 ILCS 3/). Key advantages of trusts include:
- Avoiding probate, ensuring a faster and more private transfer of assets.
- Providing for beneficiaries with conditions, such as reaching a certain age.
- Offering protection against creditors or legal claims.
Trusts can also be used to manage assets if you become incapacitated, making them a powerful tool for comprehensive estate planning.
Choosing The Right Tool For Your Needs
The choice between trust and will often comes down to your specific circumstances. Wills may be sufficient for those with simpler estates or those who primarily need to name guardians for children. Trusts are often better suited for larger estates, those with complex family dynamics, or individuals who want to avoid the probate process.
In some cases, a combination of both trust and a will is the best approach. For example, a “pour-over will” can be used to transfer any remaining assets into your trust upon your death. Working with an experienced legal team can help you determine the best plan to meet your goals.
Estate Planning FAQs
What Is The Main Difference Between A Will And A Trust?
The primary difference is that a will takes effect only after your death and must go through probate, while a trust can take effect during your lifetime and bypass the probate process. Wills are simpler but do not offer the same level of control or privacy as trusts.
Does Every Estate In Illinois Need To Go Through Probate?
Not all estates in Illinois must go through probate. Estates valued at less than $100,000 and without real property may qualify for a small estate affidavit, which avoids probate. However, larger estates or those with complex assets usually require probate unless a trust is in place.
Can I Change My Will Or Trust After Creating It?
Yes, both wills and trusts can be amended. A will can be updated with a codicil or replaced with a new one. Trusts can be modified or revoked if they are revocable trusts. Irrevocable trusts are more challenging to change and usually require specific legal steps.
Is A Trust Only For The Wealthy?
No, trusts can benefit estates of all sizes. While they are instrumental for larger estates, they also provide advantages like avoiding probate, protecting assets, and managing incapacity. Even individuals with modest estates may find a trust beneficial for their specific needs.
What Happens If I Die Without A Will Or Trust In Illinois?
If you die without a will or trust, Illinois intestacy laws (755 ILCS 5/2-1) determine how your assets are distributed. This process may not align with your wishes, as it follows a set formula for distributing assets to your closest relatives. Creating an estate plan ensures your assets are distributed according to your preferences.
How Can A Trust Help Avoid Probate In Illinois?
By transferring your assets into a trust, ownership is no longer in your name but under the trust’s name. Since probate applies to assets in your name at the time of death, property in a trust bypasses probate and can be distributed more quickly and privately.
Contact Our Chicago Estate Planning Lawyer For A Free Consultation
At Bruning & Associates, P.C., we are committed to helping you create an estate plan that fits your unique needs. Whether you are considering a will, a trust, or both, we provide the guidance you need to protect your legacy and provide for your loved ones.
Contact our Chicago estate planning attorneys at Bruning & Associates, P.C. by calling (815) 455-3000 to schedule your free consultation. With offices in Chicago, Schaumburg, and Crystal Lake, we serve clients throughout the Chicagoland area. Let our experienced team help you secure your future and ensure your wishes are carried out.
