Useful information to help guide
your probate process

Do I Have to File a Will in Illinois?

Do all estates need to go through probate in Illinois? Not necessarily! In fact, there are plenty of conditions by which an estate can avoid probate proceedings.

For example, an estate will not need to go through a full probate process if the value of the estate isn’t significant enough to merit a full court process.

A good rule of thumb to consider? Ask yourself if the estate contains real estate (owned by only the decedent), or personal property in excess of $100,000.  If the answer to both of those questions is “no,” then the estate will most likely be able to avoid the probate process.  

Consider, too, that there are also all sorts of steps an individual can take during the estate planning process to help streamline probate, or help their property and accounts avoid it altogether, including:

  • naming transfer-on-death and payable-on-death beneficiaries to applicable accounts, assets, and securities
  • establishing a trust for personal property and/or real estate
  • gifting the property to another individual before death
  • owning assets jointly, with rights of survivorship for the surviving co-owner(s)

But with all of this being said, it’s important to bear in mind that an individual’s last will and testament, if it exists, does not get to avoid the courts in Illinois, under any circumstances.

If the decedent left a will, it must be filed with the probate court system. Illinois law states that the will must become public record upon the death of the person. As such, it must be filed with their local county clerk within 30 days of discovery. It is worth noting that it is a felony in Illinois to destroy a will, or to willfully hide one for more than 30 days.

Illinois also has fairly clear guidelines for what happens in the event that an individual passes away without leaving behind a valid will, which is known as dying intestate. We have previously offered a look at Illinois intestacy laws here.

A will is an essential estate planning document for myriad reasons. Not only can you use this document to account for your property and disbursements, but also offer guidance to your survivors, and others responsible for matters pertaining to your estate.

For instance, your will generally appoints a legal representative, called an executor, to carry out your wishes and oversee the probate process. It follows that many people use their will to:

  • instruct their executor on how to pay taxes and debts
  • name a guardian for any surviving minors or others in their care
  • dictate funeral or burial arrangements

For all these matters and more, it makes sense why it is essential that the will is filed, and opened to the public record.

Bottom line? Even if you don’t own real estate or a significant amount of property, or you’ve taken advantage of certain estate planning measures to help your assets avoid probate, a basic will is still important to have in place, as it helps guide the administration of your estate.

When it comes to wills, it’s important to remember that they’re just one piece of the larger estate planning puzzle. Bear in mind, too, that everyone’s personal circumstances and needs will be different – and that the estate planning process is ongoing, and can be more complex than you might think.

For these reasons, many people find that it is beneficial to bring on an attorney to assist with matters related to the planning and administration of their estate, including overseeing their will.

In many ways, this is a key step toward securing the peace of mind of your family and friends down the line. Your loved ones may well be able to rest easier, knowing that your documents have been approved by a legal professional, and that they already have an established resource they can turn to with have any questions or concerns about your estate specifically, or the probate process more generally.

Have any further questions about wills, probate, or estate planning and administration for the Chicagoland area? Our experienced team can guide you in determining which will is the best for your estate plan, whether it be a simple will, a will with contingency trusts, or a pour-over will, which places all your assets into a living trust. Don’t hesitate to drop us a line today to keep the conversation going!

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