Illinois Estate Planning | Avoiding ProbateThe Illinois probate court is charged with: 1) deciding the validity of the last will and testament, 2) determining who the proper heirs are, 3) supervising the executor or personal representative in gathering the estate assets, 4) ensuring the executor or personal representative distributes the estate assets to the proper beneficiaries, and 5) pays the estate debts and taxes.  Thus, avoiding probate means not having anything pass under the last will and testament.  If an individual can accomplish this, then he or she will not need to file any documentation with the probate court at all.  If nothing passes under the last will and testament, then the will is normally filed for record.  No one is appointed executor and there are no accountings to file, inventory to file, or probate court fees to pay.

Avoiding probate is certainly the most publicized advantage of the revocable trust.  At least over the last decade, much emphasis has been placed in avoiding probate as the ultimate estate planning goal.  Therefore, our Chicago estate planning attorneys counsel our clients to not overlook the potential advantages that result from avoiding probate where the situation warrants use of a revocable living trust.

One of the problems associated with probate is the length of time required to administer the estate. While the overall trend is toward less lengthy probate administrations, the revocable trust may avoid some of the delays associated with the probate process. Not all delays will be avoided, however. In some cases, the same length of time will be required to clear the tax-related issues when the assets are held in a revocable trust, specifically the more complicated and well funded revocable trusts.

Another avoiding probate advantage is the revocable trust generally results in the savings of professional fees and expenses - i.e., fees associated with the will executor's commissions, attorneys and accounting fees
Probate delays may result from the appointment of the estate fiduciary, or successor trustee, and the payment of debts, claims and administration expenses. In contrast, if the trustee of the revocable living trust is already installed, no court procedures are necessary for appointment. While the funding of a testamentary trust, as opposed to a revocable trust, may be delayed until any debts, claims and estate administration expenses are paid, the funds of a revocable trust may be available immediately. Payment of life insurance proceeds and qualified plan benefits to the revocable trust rather than a testamentary trust also is recommended if estate liquidity could be a problem.

Another avoiding probate advantage is the revocable trust generally results in the savings of professional fees and expenses – i.e., fees associated with the will executor’s commissions, attorneys and accounting fees.  However, sometimes the savings may not be great enough to be a compelling reason to choose a revocable trust over a will. An Illinois estate planning attorney fees for drafting a will must be compared with the fees generally charged for drafting revocable trusts. Many Chicago estate planning attorneys use wills as a “loss leader” in the hope of getting the probate administration, so the attorney fees for wills often will not reflect the true time invested. As a general rule, the attorney fees for preparing revocable trusts are higher than those for preparing a simple will.