Does a Will Avoid Probate in Illinois?

The Common Misconception About Wills and Probate

One of the most common misconceptions Brad encounters with new clients is the belief that having a will means their family will avoid probate. It is an understandable assumption—but unfortunately, it is incorrect.

The Short Answer

No, a will does not avoid probate in Illinois.

In fact, a will serves as a set of instructions for the probate court. It tells the court who should receive your assets after your death, but it still requires court supervision to carry out those instructions.

As a result, your estate may still go through the probate process even if you have a valid will in place.

What Is Probate?

Probate is the court-supervised legal process used to administer a deceased person’s estate.

In Illinois, the probate process generally includes:

• Filing a petition with the circuit court in the county where the deceased lived
• Formally appointing an executor (or administrator if no will exists)
• Notifying known creditors and publishing notice for unknown creditors
• Inventorying and valuing estate assets
• Paying debts, taxes, and estate expenses
• Distributing remaining assets to beneficiaries according to the will—or according to Illinois intestate succession laws if no will exists

How Long Does Probate Take?

In DuPage County, a routine probate case typically takes 12 to 24 months to complete.

Is Probate Public?

Yes. Probate proceedings become part of the public record, meaning anyone can access court filings and review details about your estate.

What Does Probate Cost?

Probate expenses can include:

• Attorney fees
• Executor compensation
• Court filing fees
• Appraisal and valuation costs

Collectively, these expenses often consume 3% to 8% of the estate’s gross value.

“The families most surprised by probate are the ones whose loved ones left behind a will. They assumed the will was enough. The will is a starting point—not a finish line.”

— Brad Plaschke, Managing Attorney

What Does a Will Actually Do?

Although a will does not avoid probate, it still serves several important purposes.

A properly drafted will can:

Name Your Beneficiaries

Specify who should receive your probate assets after court approval.

Appoint Guardians for Minor Children

A will is the only estate planning document that can legally nominate guardians for minor children.

Nominate an Executor

You can choose a trusted individual to administer your estate and oversee the probate process.

Create Testamentary Trusts

A will can establish trusts that become effective upon your death for the benefit of minor children or other beneficiaries.

Why a Will Is Still Important

Having a will is significantly better than having no estate plan at all. However, if your goal is to avoid the delays, expenses, and public exposure associated with probate, a will alone is not enough.

What Assets Can Avoid Probate in Illinois?

Several estate planning tools allow assets to transfer directly to beneficiaries without going through probate.

1. Revocable Living Trust

A properly drafted and funded Revocable Living Trust is the most comprehensive probate-avoidance strategy available to Illinois families.

Key Benefits

• Avoids probate upon death
• Maintains privacy
• Allows faster asset distribution
• Provides incapacity planning during your lifetime
• Names a successor trustee to manage assets if you become unable to do so

The Importance of Trust Funding

A trust must be properly funded to be effective.

An unfunded trust—sometimes referred to as an “empty trust”—provides little benefit. Funding involves transferring ownership of assets such as:

• Real estate
• Bank accounts
• Investment accounts
• Other valuable property

Many estate plans fail because this critical step is overlooked.

2. Transfer on Death Instruments (TODI)

Illinois law allows homeowners to record a Transfer on Death Instrument (TODI).

This document enables real estate to transfer automatically to a named beneficiary upon death without probate.

Advantages

• Simple and cost-effective
• Avoids probate for real estate

Limitations

• Applies only to real property
• Does not address incapacity
• Does not cover financial accounts or other assets
• Offers less flexibility than a trust

3. Beneficiary Designations

Many assets pass directly to beneficiaries through beneficiary designations, including:

• IRAs
• 401(k) accounts
• Life insurance policies
• Payable-on-death (POD) bank accounts

Common Mistake

One of the most frequent estate planning errors is failing to update beneficiary designations after major life events such as:

• Divorce
• Marriage
• Birth of children
• Death of a beneficiary

Outdated designations can lead to unintended consequences and distributions.

4. Joint Tenancy with Right of Survivorship

Property owned jointly with rights of survivorship automatically transfers to the surviving owner when one owner dies.

Benefits

• Avoids probate
• Immediate transfer of ownership

Potential Risks

• Loss of control over the property
• Exposure to the co-owner’s creditors
• Potential gift tax implications
• Limited flexibility for long-term estate planning

Because of these risks, joint tenancy should not be viewed as a complete estate planning solution.

The Best Estate Planning Strategy for Most Illinois Families

For most Illinois homeowners and families, the most effective estate planning structure includes:

A Funded Revocable Living Trust

Combined with:

• A Pour-Over Will
• Durable Powers of Attorney
• Healthcare Directives
• Properly Updated Beneficiary Designations

This comprehensive approach provides one of the strongest probate-resistant strategies available under Illinois law.

Final Thoughts

If you currently have a will and believe it protects your family from probate, it may be time to take a closer look.

While a will remains an important estate planning document, it does not eliminate probate. A thorough review of your existing plan can identify gaps, reduce future complications, and help ensure your assets pass efficiently to the people you care about most.

Schedule a Free Estate Planning Review

A complimentary planning review with Brad can help determine:

• Whether your current estate plan avoids probate
• Which assets remain exposed to probate proceedings
• Whether a revocable living trust would benefit your family
• What steps can be taken to strengthen your overall estate plan

Proper planning today can save your family significant time, expense, and stress in the future.