Probate is a legal process that occurs after a person passes away, in which their estate is administered and distributed to beneficiaries. It involves validating a decedent’s will (if there is one), paying any outstanding debts, and distributing the remaining assets to the rightful heirs. The process can be time-consuming, costly, and often complicated, leaving many individuals wondering if there is a way to avoid probate in Illinois with an estate plan.
This article explores the probate process in Illinois and three estate planning strategies that may help individuals avoid probate. If you need estate planning assistance, I invite you to call RNH Law to schedule a free consultation. As an experienced Frankfort probate attorney with over fifteen years of legal experience, I can answer any questions that you may have, explain your legal options, and provide pragmatic guidance through every step of the estate planning process.
As an experienced Frankfort probate attorney, I have seen firsthand the challenges families face when navigating the probate process. Many clients wonder why it is desirable to avoid probate, and the answer is quite simple: probate can be expensive, time-consuming, and expose private details about an estate to the public. By avoiding probate, decedents can typically keep their estate affairs confidential, prevent costly administration fees, and promptly distribute assets to their family and loved ones.
In many cases, a decedent’s family may require funds from the estate to cover funeral, living, and other expenses. Long delays in the probate process can place them in a financially compromising position and prolong an already difficult situation, causing emotional distress.
In Illinois, probate timelines vary depending on the complexity of the estate. A simple probate case may take approximately one year to finalize, while more intricate cases can take a few years, or longer. If probate is contested, probate can take significantly longer. As a result, it is crucial to avoid probate through meticulous estate planning if possible, ensuring that your family receives much-needed support as quickly as possible.
Aside from the lengthy probate delays, estate administration, attorney, filing, and other fees accumulate during probate, diminishing the estate’s value and, consequently, what family members and loved ones may receive. Before distributions are made to heirs, probate fees are deducted from the estate assets. If substantial fees are incurred, the amount that each beneficiary receives is often significantly less than if probate had been avoided. By ensuring that property automatically transfers to beneficiaries, many of these expensive estate-administration expenses can be circumvented.
Privacy is a significant concern for most people, particularly when it comes to their property and estate. When an estate (or portions of an estate) is subject to probate in Illinois, private information about the estate becomes publicly accessible. Probate records are public records, meaning anyone can visit the local county courthouse and examine an estate file. By avoiding this process, individuals can maintain a higher level of privacy and protection for their beneficiaries.
Avoiding probate in Illinois offers several potential benefits, including privacy protection, reduced costs, and timely asset distribution. As a Frankfort probate attorney, I am well-equipped to guide clients through the process of creating a comprehensive estate plan that safeguards their assets and ensures a smoother transition for their loved ones.
Fortunately, there are effective methods that can typically be utilized to potentially avoid probate in Illinois. Here are three fundamental estate planning tools that may help bypass the probate process and ensure assets are distributed to loved ones as intended.
Establish a Living Trust.
One of the easiest ways to potentially avoid probate is to create a living trust, which is an alternative to a last will and testament. In a living trust, your assets are placed “in trust” during your lifetime and managed by a designated trustee for the benefit of your beneficiaries.[1] This differs from a will, which only transfers your assets upon your death. Since the property and assets are already distributed to the trust at the time of death, and because trusts are not usually subject to probate, probate may be avoided altogether.
Living trusts can be created as revocable or irrevocable trusts, offering varying degrees of control and protection. Because Illinois does not follow the Uniform Probate Code, creating a living trust can help you navigate the state’s intricate probate procedures. If you are interested in establishing a living trust, I encourage you to call my office to schedule a free consultation.
Own Property Jointly
Another practical approach to keeping real estate assets out of probate is to hold property jointly with another individual. Joint ownership generally allows for the automatic transfer of property from the deceased to the surviving owner at the time of death, bypassing the probate process. Property deeds can be retitled during your lifetime to include a family member or significant other, ensuring the smooth transfer of ownership after your death.
In Illinois, Joint Tenancy with Right of Survivorship is a common arrangement, typically involving spouses, but not exclusively. This type of joint ownership means that both parties co-own the property in equal shares, with the surviving owner automatically inheriting the deceased’s share.
Designate Beneficiaries on Financial Accounts
A crucial step to potentially avoid the lengthy and complex probate process is to ensure that you have designated beneficiaries on all of your financial accounts. This includes retirement benefits, bank accounts, life insurance policies, and other financial assets.
By naming beneficiaries, assets in those accounts are directly transferred to the designated individual(s) upon death, likely circumventing probate. Failure to name beneficiaries can result in your assets being distributed according to Illinois intestacy laws, which may not align with your wishes.
Probate can be a lengthy, costly, and often complicated process. However, with careful estate planning, it may be possible to avoid probate in Illinois and ensure that your assets are distributed to your loved ones according to your wishes. By establishing a living trust, holding property jointly, and designating beneficiaries on your financial accounts, you can potentially bypass the probate process and provide peace of mind for yourself and your loved ones.
If you are considering any of these estate planning strategies, it is highly recommended that you consult with an experienced estate planning attorney who can help you navigate the intricacies of Illinois probate law and create a customized plan tailored to your unique situation. With the right guidance and planning, you can protect your assets, avoid probate, and provide a smoother transition for your loved ones during a challenging time. I invite you to call my office today at (708) 279-4050 to schedule a free consultation to learn more about probate and your options.