Does Every Estate Have to Go Through Probate in Illinois?

When a loved one passes away, their estate most often needs to be settled through a legal process called probate. However, not every estate in Illinois is required to go through probate. Understanding when probate is necessary and when it can be avoided can help families streamline estate administration and minimize legal expenses. See below for general guidance in this critical area, but for personalized advice and assistance tailored to your particular needs and goals, contact MacDonald, Lee & Senechalle, Ltd., to speak with an experienced and dedicated Chicago estate planning and probate lawyer.

What Is Probate?

Probate is the court-supervised process of validating a will, identifying heirs, paying debts and taxes, and distributing assets to beneficiaries. In Illinois, probate is generally required when an individual passes away with assets exceeding a certain threshold or when assets are solely in their name without a designated beneficiary.

When Is Probate Required in Illinois?

Probate is typically necessary in Illinois under the following circumstances:

• The decedent owned assets worth more than $100,000 that were solely in their name.
• The decedent did not have a living trust or other estate planning tools to transfer all of their assets outside of probate.
• The estate contains real estate titled solely in the decedent’s name without a transfer-on-death instrument.
• There are disputes among heirs or creditors requiring court involvement.

When Can Probate Be Avoided?

Not all estates need to go through probate. In Illinois, probate can be avoided in the following situations:

1. Small Estates Affidavit

If the total value of the estate (excluding real estate) is $100,000 or less and there are no disputes among heirs, the estate can be settled using a Small Estate Affidavit. This process allows beneficiaries to claim assets without going through formal probate.

2. Joint Ownership with Rights of Survivorship

If assets such as real estate, bank accounts, or investment accounts are held in joint tenancy with rights of survivorship, they automatically transfer to the surviving owner without probate.

3. Beneficiary Designations

Assets with designated beneficiaries, such as life insurance policies, retirement accounts (IRA, 401(k)), and payable-on-death (POD) or transfer-on-death (TOD) accounts, bypass probate and go directly to the named beneficiaries.

4. Living Trusts

Placing assets in a revocable living trust ensures they pass directly to beneficiaries upon death, avoiding probate. The successor trustee distributes assets according to the trust’s instructions without court supervision.

5. Transfer-on-Death Instruments for Real Estate

Illinois allows individuals to execute a Transfer-on-Death Instrument (TODI) for real estate, which ensures property transfers directly to named beneficiaries without probate upon the owner’s death.

Why Avoid Probate?

Avoiding probate can provide several benefits, including:

• Time Savings: Probate can take several months to over a year to complete.
• Cost Savings: Court fees, attorney fees, and administrative costs can be significant.
• Privacy: Probate records are public, whereas trusts and beneficiary designations keep estate matters private.
• Simplified Process: Avoiding probate allows heirs to receive assets more quickly and without court intervention.

Plan Ahead to Avoid Probate

While not every estate must go through probate in Illinois, proper estate planning is key to avoiding unnecessary delays and expenses. If you want to ensure your assets pass smoothly to your loved ones, consider creating a comprehensive estate plan that includes trusts, beneficiary designations, and joint ownership strategies.

At MacDonald, Lee & Senechalle, Ltd., we help individuals and families in the Chicago area navigate estate planning and probate matters securely and efficiently. Contact us today for probate assistance or to discuss your options and create a plan that meets your needs and goals.