Broadly speaking, probate is the process through which a deceased person’s assets are distributed, as overseen by the court system. Probate is an important step in the estate administration process, and is designed to help ensure that the decedent’s debts are met and their assets disbursed fairly – not only in line with their wishes, but also in compliance with all state and local laws.

In practice, however, the probate process can be slow going and expensive. It’s often a complex and time-consuming effort for your loved ones, and it may expose sensitive or personal information about yourself or your possessions to the public record.

For these reasons and more, many people take steps to help as many of their assets as possible bypass the probate process entirely.

Weighing your options? Here are a few steps that may help some of your assets avoid probate, helping expedite the process, preserve your privacy, and provide for your loved ones in a trying time:

1.) Establish Joint Ownership

Often, assets such as motor vehicles, real estate, or financial accounts that are owned jointly can bypass probate, provided that they are owned via “joint ownership with right of survivorship” (also referred to as “joint tenancy with right of survivorship”).

Assets owned in this manner almost always transfer ownership to the surviving party in the event of one co-owner’s death. This type of ownership should not be confused with “tenancy in common.” With a tenancy in common arrangement, the deceased person’s share of an asset is distributed to their beneficiaries as directed by their will, meaning that the asset in question will probably not be able to avoid probate.

2.) Create a Trust

Trusts have been long been noted for their estate planning benefits, which include:

• tax planning and preparation
• asset protection
• increased privacy

Assets placed in a living trust, whether revocable or irrevocable, do not need to be probated. Instead, upon the grantor’s death, the person named as the successor trustee receives control of the trust property, and is charged with collecting all trust assets and distributing them to the trust beneficiaries, in line with the grantor’s wishes.

With that said, if a will creates a trust, or stipulates that assets should be placed into to an already-existing trust (say, by means of a pour-over will), the will and the assets may still have to go through probate in some cases. For instance, pour-over wills, like other wills, do not avoid probate if they pass assets with an aggregate value exceeding $100,000, or if there is any real estate involved.

3.) Add Beneficiaries to Relevant Assets and Accounts

Certain assets may avoid probate if you name a beneficiary for them prior to your death. In Illinois, transfer-on-death and/or payable-on-death beneficiaries may often be designated for a variety of assets, including:

• Bank accounts
• Certificates of deposit
• Stocks, bonds, securities
• Vehicles

When you create this designation (generally by means of fairly straightforward paperwork), you retain sole control over the asset, and can use it as you see fit. When you pass, your named beneficiary can claim the money or property directly, without having to go through probate.

With that being said, it’s important to recognize that there may still be circumstances in which assets with beneficiaries have to face probate. Most commonly, this occurs when the deceased names their estate as their beneficiary, or if the named beneficiary has already passed or somehow become incapacitated.

Looking Ahead

Ultimately, it’s important to remember that many of the specifics of the probate process for your estate will come down to your unique circumstances, including the size and complexity of your estate; the likelihood that family members may raise contests or disputes; and the amount of care you put into the estate planning process early on.

Working with a legal team experienced in all aspects of probate, estate planning, and estate administration may be one way to help chart the best course for you. Having a compassionate, objective expert on your side could set you up for greater peace of mind down the line – and help ensure that you’re able to provide for your family when they need it most.

Have any further questions about any topics pertaining to estate planning and probate in Illinois? Don’t hesitate to reach out to get the conversation started. We can assist with the basic steps of administering the probate estate, including matters of heirship, wills and trusts, independent or dependent administration, estate accounting, and distributions.

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