Does a Will Prevent Probate?

The Effect of a Will on Probate in Illinois

It's a call we get all the time - "I want to make a will so that my family doesn't have to go through probate court". 

It's a beautiful idea and reveals a person who really cares about their family's well-being. Not everyone takes the time to concern themselves with what happens after they're gone, but if you do, it's understandable to come to the conclusion that a little estate planning can have a big effect on protecting your assets. But are these well meaning folks make an assumption that could be costly? Will a will avoid the mess of probate court? Let's take a look.

What is Probate in Illinois?

First, let's very quickly set the scene - what is "probate" and is it really something to be avoided? 

It's a Public Lawsuit

Probate is a court proceeding meant to oversee and supervise the proper and lawful disposition of assets for someone who is deceased. It's a way to make sure everyone gets what they are owed, and that assets that are transferred are transferred properly and in a way that is meaningful. For example, selling a baseball card collection of someone who passed away may be effective, but what if someone later argues that they had legal rights to that card collection and the seller didn't havethe right to sell? If you can imagine the legal mess something as simple as a this can cause, now apply that to cars, real estate or other assets. So the probate process is a lawsuit your estate files against itself to make sure everything is done right. This process exists all over the US, in every jurisdiction. What's more, since the State of Illinois' interest is in being certain everything is done above-board, there will be a published announcement about your probate, and your assets will be laid bare for the world to see and examine.

Time and Money

In Illinois, any estate with total net assets exceeding $100,000 generally must navigate the probate system. By law, that process takes a minimum of 6 months, with 12-18 months being more typical. Some local jurisdictions have longer time requirements, such as Cook County, which requires at least 14 months. There are court costs, filing fees, and likely at least some attorneys fees. Even with no disputes adding expenses, typical probate fees and expenses can range from $5000-6500 as of the date of this filing, and that excludes any collateral expenses you can expect during that time like accounting fees, storage fees, property taxes, insurance and more. 

A Will Can Save Me!

Enter the Last Will and Testament, certainly that will help, right? Unfortunately, not really. Without a will, the Court will follow the distribution decisions made for you by the State of Illinois legislature. A will doesn't prevent probate, but it does tell the Court your wishes, and supercedes the instructions of the legislature as long as none of your instructions are against public policy or are outright illegal. Your estate will still be subject to probate. 

How can you avoid probate? There are a variety of ways, and we'd be happy to discuss strategies with you. Give us a call at (847) 635-8200 or complete the form on our site to schedule a brief Estate Planning Discovery Call with an attorney at no cost to you!