Will vs. Trust: What’s the Difference in Illinois?

 Posted on June 26, 2023 in Estate Planning Blog

If you are planning your estate in Illinois, knowing the distinctions between a will and a trust is important. While both are useful, they have distinct features and benefits. In this blog post, we will explore these differences and assist you in making informed decisions about your estate plan.

Getting Around Probate

One significant difference between a will and a trust in Illinois is how they handle probate. Probate is a legal process that involves the court overseeing the transfer of properties from a person who has died to their heirs. Whether or not the deceased person had a will, probate is usually required. This process makes the will a public record, which means that anyone can view the assets you owned and who they were given to.

On the other hand, probate is not necessary for a revocable living trust. The person who creates the trust (known as the grantor) can manage the assets in the trust while they are alive. Once the grantor passes away, a successor trustee named in the trust documents takes over and distributes the trust’s assets to the beneficiaries specified in the trust. This procedure is private and offers a level of confidentiality that is not available with a will.

Privacy Matters

One significant benefit of having a trust instead of a will is the increased level of privacy it provides. When a will goes through probate, it becomes public knowledge, but a trust maintains the confidentiality of your personal information. Only beneficiaries, and in certain states, heirs, have access to trust records. These records will not be publicly disclosed unless a beneficiary or successor challenges the validity of the trust through a legal lawsuit.

Provisions for Mental Incapacity

A revocable living trust offers a noteworthy benefit over a will when it comes to planning your estate for possible mental incapacity. In the event that you are no longer capable of managing your affairs due to mental incapacitation, your nominated successor trustee can take over. This is a provision that a will does not offer. Your family members would need to ask the court to select a guardian or conservator to manage your affairs without a revocable living trust.

However, be cautious when setting up a revocable trust. Some don’t consider mental incapacity, while others have only basic preparations. Therefore, if you create a trust, ensure it has a detailed disability plan​.

The Role of a Will

Despite the advantages of a trust, a will still has its place in estate planning. A trust, upon formation, is an empty vessel until you transfer your property into it. If no other plans are made for it to transfer to living beneficiaries, property left out may still require probate​.

To manage this, some people create “pour-over” wills, which direct that everything you own under your name should be transferred to the trust when you die. This process also necessitates probate​​.

A will can be used to appoint a guardian for your minor children if you die, something a trust cannot do​.

Contact a DuPage County Family Law Attorney

Both wills and trusts have unique advantages and applications in estate planning in Illinois. Understanding these differences can aid you in making the most suitable decisions for your individual needs and circumstances. Working with an Illinois estate planning lawyer can help you navigate the steps easier. Contact Stock, Carlson & Asso. LLC at 630-665-2500 to discuss estate planning in more detail.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2104&ChapterID=60&SeqEnd=6800000&SeqStart=5300000

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=4001&ChapterID=61&DocName=076000030HArt.+6&SeqEnd=6400000&SeqStart=5800000