How to Avoid Probate in Illinois

Start with what you own

Probate is for property that is in the dead person's name alone and has no other way to pass. So the first step is a list. Write down each asset, how it is titled, and who, if anyone, is named to receive it. The assets with nobody named are the ones that would need a court case or an affidavit. The assets with a trust, a co-owner or a beneficiary on file may skip the court.

1. A revocable living trust

You create the trust, move your assets into it, and name a successor trustee to carry out your wishes. Property that the trust owns does not need to go through a probate case. The work is in the retitling. A trust holds only what you transfer into it. A house you forgot to deed to the trust, or an account still in your own name, can end up needing probate anyway. The trustee also has notice and accounting duties after your death, which you can read about on the trust administration page. For help choosing, see revocable living trusts and will versus trust.

2. A transfer on death instrument for real estate

Illinois law lets an owner name a beneficiary for real property by a recorded instrument (755 ILCS 27, the Real Property Transfer on Death Instrument Act). The rules matter:

• It must be signed, witnessed and acknowledged as the Act requires, and it must say the transfer happens at the owner's death (27/40, 27/45).
• It must be recorded in the county recorder's office before the owner dies. If it is not, it is void and does not transfer title (27/40).
• It is not a will. It cannot be admitted to probate (27/30).
• An agent under a power of attorney cannot create or revoke one for the owner (27/35).
• After the death, the beneficiary may record a notice of death affidavit to confirm title, though recording it is not a condition of the transfer (27/75).

Read more on transfer on death instruments.

3. Joint title

Property held jointly may pass to the other owner at a death, depending on how the deed or account is worded. It is simple and costs little to set up, but adding someone to your property gives that person an ownership stake today, not just at your death. It can also pull the property into that person's own debts, divorces and lawsuits. Joint title also does nothing for what happens after the second owner dies. Have the wording of any deed or account checked before you rely on it.

4. Beneficiary forms

Many retirement accounts, life insurance policies and some bank accounts let you name who receives the money. The institution pays the named person, and no court case is needed for that asset. The weak spots are old forms, an estate named as the beneficiary by mistake, and a named person who died before you. Review each form after a marriage, a divorce, a birth or a death.

5. The small estate affidavit

If the personal property comes to $150,000 or less, not counting vehicles registered with the Secretary of State, and no letters of office are outstanding or sought, a sworn affidavit signed before a notary can move it (755 ILCS 5/25-1). It covers personal property only, and the person who signs takes on the duty to pay valid claims first. Details and the 2027 vehicle change are on the small estate affidavit page.

A will still has a role

Even with these tools, most people keep a will as a backstop for anything left out of the plan. Under the Probate Act, whoever holds a will must file it with the clerk right after the death (5/6-1), whether or not a full case follows. If a will leaves property to a revocable trust, the time to challenge the trust matches the time to challenge the will (5/8-1(f)). Read about wills and the probate overview if you want the full picture.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.