A will is enough for many Illinois families. It names who gets your property and who raises your children. A trust adds a second layer: it holds property under a trustee's control, and it can pay out on a schedule you set. You choose a trust for a reason you can name, not because it sounds safer.
What a will does and does not do
In Illinois, anyone 18 or older with a sound mind can make a will (755 ILCS 5/4-1). It must be in writing, signed by you, and witnessed in your presence by at least two credible witnesses (4-3). A will can also name the person you want to raise your minor children. The Probate Act lets a parent make that choice in any writing, including a will, and the choice must be witnessed by two adults who are not the person named (755 ILCS 5/11-5(a-1)).
What a will does not do is skip court. When you die, whoever has your will must file it with the circuit court clerk right away (6-1). The estate is then handled in the court of the county where you lived (5-1). For a Lockport or Joliet household, that is the Will County Courthouse.
See the page on wills for the signing steps.
What a trust adds
An Illinois trust is created when an owner transfers property to a trustee, or declares that the owner holds property as trustee (760 ILCS 3/401). It needs a person with capacity who shows intent, a beneficiary who can be identified, duties for the trustee, and a trustee who is not the only beneficiary (3/402). A trust can be revocable, which means you can change or cancel it, but only if the document says so (3/602).
The trap is funding. A trust controls only what is placed in it. A trust document sitting in a drawer, with your house and accounts still in your own name, does little. Each asset needs to be retitled or assigned. A will can help catch the leftovers. Illinois lets a will leave property to a trust that already exists (755 ILCS 5/4-4).
The revocable living trust page explains the pieces, and the will versus trust page sets them side by side.
Get your plan done. Call Jeff.
Tell Jeff about your family, your home and what you want to happen. He'll explain the next step.Office hours: Monday to Friday 8:30 AM to 6 PM, Saturday 10 AM to noon. After hours, leave your name, number and the best time to call back.
Jeff McCarthy, Inspired Law Group, 136 E 9th St, Lockport, IL 60441
Five questions that decide it
- Do you own a home or land in Illinois? A house in your own name goes through probate court unless it is moved another way. A trust is one way. A transfer on death instrument is another (Real Property Transfer on Death Instrument Act, 755 ILCS 27).
- Are your total personal assets small? Illinois has a short cut for small estates, covered in the next section.
- Do your children, or a beneficiary, need money paid out over time and not in one lump? A trust can do that. A plain will leaves property outright.
- Might you someday be unable to manage your own money? A trust can name a successor trustee to step in. A power of attorney can do part of that job too.
- Is someone likely to challenge the plan? A trust, by itself, does not end a family argument, so ask about that first.
When the small estate shortcut changes the answer
If a person dies owning personal property of no more than $150,000, not counting registered motor vehicles, the family may collect it with a sworn small estate affidavit and skip opening probate (755 ILCS 5/25-1). So a renter with a bank account, a car and a modest brokerage account may not need a trust at all. The affidavit rules are in the post on the $150,000 small estate affidavit.
That shortcut covers personal property. It does not list real estate. Someone who owns a home needs a plan for the home, and that is often where the trust question comes from.
What happens with no plan at all
Without a will, Illinois decides for you. If you leave a spouse and a child, half of the estate goes to the spouse and half to your descendants. If you leave a spouse and no descendants, the spouse takes it all. With no spouse but children, the children share it (755 ILCS 5/2-1). Picture a widowed parent with two grown children and a house. With no will, the house splits two ways by law, and the children must agree on a sale or on who keeps it.
Name your own plan, with a will at the least. Read about dying without a will if you want the full order of heirs.
What a trust will not fix
- It does not stop a divorce from changing things. Under 760 ILCS 3/605, a divorce revokes the settlor's provisions for the former spouse in a revocable trust, unless the trust or the judgment says otherwise.
- It does not choose guardians for minor children. That choice belongs in a will or another witnessed writing.
- It does not settle the Illinois estate tax question. That depends on the size of the estate. See the page on the Illinois estate tax.
Powers of attorney for property and health care sit beside either choice. They cover the years when you are alive and cannot decide for yourself.
A quick way to decide
If your answer to every question above is no, start with a will, a property power of attorney and a health care power of attorney. If you own real estate, want staged payouts, or want a plan that works without court steps, ask about a trust. The do I need a trust tool walks through this in a few clicks. Jeff reviews the real facts on a call, because family and property facts decide this, not a list.
Questions people ask
Can I have both a will and a trust in Illinois?
Yes. Many plans use a trust for main assets and a will that catches anything left out. Illinois allows a will to leave property to an existing trust (755 ILCS 5/4-4).
Does a trust avoid probate?
Property that is in the trust is not in your name at death, so probate does not need to move it. Property left outside the trust may still need probate or a small estate affidavit.
Does a will have to be witnessed?
Yes. Illinois requires two or more credible witnesses who attest in your presence (755 ILCS 5/4-3).
What if I do nothing?
The Probate Act sets the heirs. With a spouse and children, half goes to the spouse and half to the children (755 ILCS 5/2-1).
Is a trust only for rich families?
No. A trust is a tool for specific goals like holding a house or paying out over time. Wealth is not a requirement.
Sources
- 755 ILCS 5/2-1, 4-1, 4-3, 4-4, 5-1, 6-1, 11-5, 25-1 (Probate Act of 1975), Illinois General Assembly
- 760 ILCS 3/401, 402, 602, 605 (Illinois Trust Code), Illinois General Assembly
Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.
This page is general legal information about Illinois law. It is not legal advice, it does not create an attorney client relationship, and it does not account for the facts of any particular case.
