Will or Trust in Illinois: Which Fits You
Most Illinois families need a will. A trust is added when you want property to skip probate, or want a trustee ready to manage property if you cannot. A will works only at death. A trust works from the day it is signed and funded. Many plans include both.
What you need
The documents depend on which route you take.
- For a will: the signed will, two witnesses at signing, and the names of your executor and any guardian for minor children.
- For a trust: the trust agreement, deeds and account forms that move property into it, and a successor trustee.
- For both: a pour-over will, a power of attorney for property, and a power of attorney for health care.
Each document has its own page. See wills and revocable living trusts for the details of each.
The two documents side by side
| Question | Will | Revocable living trust |
|---|---|---|
| When does it start working? | At your death | When signed, for the property you move into it |
| What Illinois requires to make it | Writing, your signature, and two or more credible witnesses (755 ILCS 5/4-3) | Capacity, intent, a definite beneficiary, and duties for the trustee (760 ILCS 3/402) |
| Does it avoid probate? | No. The court reads the will during probate. | Yes, for assets titled in the trust |
| Help if you become unable to manage money | None | The successor trustee can manage trust property under the document |
| Names a guardian for minor children | Yes | Not its job. A will or a signed writing with two witnesses does that. |
| Deadline to contest | Six months after the will is admitted to probate (755 ILCS 5/8-1) | The earlier of two years after death or the second deadline in 760 ILCS 3/604 |
| Effect of divorce | Gifts to the former spouse are canceled (755 ILCS 5/4-7) | Provisions for the former spouse are revoked (760 ILCS 3/605) |
| Creditors during your life | Not applicable, since it does nothing until death | Creditors can reach revocable trust property (760 ILCS 3/505) |
When a will is enough
A will can fit when your property is modest, your wishes are simple, and the cost and time of probate are not a worry to you. Everything you own goes through the court, but the process is familiar and the will gives the judge clear instructions. Illinois also has a shorter route for small estates, covered on the small estate affidavit page.
Even with a trust, you still want a will. It names a guardian for young children, and it catches anything left out of the trust.
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
When a trust earns its place
Trusts tend to come up for people who own a home they want to pass without a court case, who have children from more than one relationship, or who want a named person ready to manage property if illness strikes. A trust also lets you set the terms for how a beneficiary receives property. A trust takes more work up front, because every asset you want in it must be retitled.
Illinois does not tie trusts to a certain level of wealth. The question is whether the extra steps give your family something that a will alone cannot. Jeff walks through that with you. You can also start with the Do I Need a Trust tool.
Using both
The two documents fit together. Section 4-4 of the Probate Act lets a will leave property to the trustee of a trust that already exists and is identified in the will. That is the pour-over will: anything still in your name at death flows into the trust and is then handled by its terms. That property does go through probate first, which is why the trust should be funded during your life.
What neither one does
Neither a will nor a trust is a substitute for the two powers of attorney. A will does nothing while you are alive. A trust only reaches what you have placed in it. If you are in the hospital, your health care agent speaks for you, and your property agent pays the bills that sit outside a trust.
Neither document fixes a plan that has gone stale. Marriages, divorces, births, and new real estate all call for another look.
Sources
Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.
Questions people ask about will vs trust
Short answers first. Jeff McCarthy reviews every answer on this page.
Almost everyone needs a will. You add a trust if you want property to skip probate or want a successor trustee ready to manage it. Jeff can help you decide after he hears what you own and who depends on you.
It depends on your goals. A trust avoids probate for the assets in it and can cover you during incapacity. A will is simpler to set up and is the usual place to name a guardian for children.
No. Most trust plans include a pour-over will, which catches property you did not retitle. Section 4-4 of the Probate Act allows a will to leave property to an existing trust.
No. Nothing in the Illinois Trust Code ties a trust to a net worth. People use trusts for a single house as well as for large estates.
A will can be contested within six months after it is admitted to probate. A trust that was revocable at death can be contested within the earlier of two years after the death or the second deadline in section 604 of the Trust Code.
Yes, and many Illinois plans do. The trust holds the assets you retitled, and the will covers guardians and anything left over.
The trust does, but only for assets titled in the trust. A will never avoids probate.
Keep reading
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- Get clear on your legal options.
- Avoid costly mistakes.
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