Estate Planning FAQ's
A Will is a legal document that appoints an executor to handle your final affairs after you pass away and designates your beneficiaries (the people who inherit your assets). A Trust serves the same purpose as a Will, but the mechanism is different. A Trust is like setting up a personal corporation for you and your family. You will designate a successor trustee, who will manage your affairs after you pass away and identify your beneficiaries, those who will inherit your assets.
Probate: Probate is the legal process after the death of an individual in which the assets and debts of a person are determined, their wishes are acknowledged, notice of their death is published, and claims, if any, are filed against the estate. In Illinois, if an individual has $100,000 or more in their individual estate when they pass away, the estate must go through probate to divide the estate’s assets. While you do not need to hire an attorney for the probate process, most people do as it requires multiple court appearances and between 10-20 legal documents to be filed. The probate process from start to finish typically takes between 7 months and one year and most attorneys charge between $4,000- $10,000 depending on the level of complexity to the estate. Wills and trusts have different impacts on the probate process.
- Wills: All wills must be filed with the probate court when you pass away. If your individual estate has $100,000 or more (excluding any accounts with beneficiaries, assets held jointly, assets held by a trust, etc.), then your loved ones must obtain letters of office from the probate court to distribute your assets pursuant to your will.
- Trusts: When you pass away, your successor trustee automatically steps into place without needing to obtain letters of office. Generally, Courts do not get involved in the administration of trusts, only wills. As such, Trusts are often used to “bypass” the probate the process in Illinois. There are exceptions to this rule, but generally having a Trust will prevent the Court system and lawyers from getting involved in the process.
Probate: Probate is the legal process after the death of an individual in which the assets and debts of a person are determined, their wishes are acknowledged, notice of their death is published, and claims, if any, are filed against the estate. In Illinois, if an individual has $100,000 or more in their individual estate when they pass away, the estate must go through probate to divide the estate’s assets. While you do not need to hire an attorney for the probate process, most people do as it requires multiple court appearances and between 10-20 legal documents to be filed. The probate process from start to finish typically takes between 7 months and one year and most attorneys charge between $4,000- $10,000 depending on the level of complexity to the estate. Wills and trusts have different impacts on the probate process.
Wills: All wills must be filed with the probate court when you pass away. If your individual estate has $100,000 or more (excluding any accounts with beneficiaries, assets held jointly, assets held by a trust, etc.), then your loved ones must obtain letters of office from the probate court to distribute your assets pursuant to your will.
Trusts: When you pass away, your successor trustee automatically steps into place without needing to obtain letters of office. Generally, Courts do not get involved in the administration of trusts, only wills. As such, Trusts are often used to “bypass” the probate the process in Illinois. There are exceptions to this rule, but generally having a Trust will prevent the Court system and lawyers from getting involved in the process.
Which do I need – a Will or a Trust?
We try not to steer our clients in one direction or another when it comes to deciding between a Will or a Trust. Wills are cheaper to create initially, but because the probate process is time-consuming and costly, a Will may end up being more expensive in the long run than a Trust. Trusts tend to be lifetime documents. Once established, they exist indefinitely but need to be updated as your life changes. During your free initial consultation, our attorneys will explain the differences between the two documents in detail and help you create a plan that fits your needs and budget.
No, it is not required to have a Will or Trust in the state of Illinois. However, Wills and Trusts are incredibly helpful for grieving families when they lose a loved one. They not only specify exactly who is to receive what, but they also provide clarity and direction regarding a person’s assets, who they want to help raise their children, and which charities are important to them.
If you die without a Will or Trust, your loved ones will need to open a probate case with the local court, and the intestacy statutes of Illinois will govern how your assets are distributed. Typically, assets are awarded to legal spouses and children (both biological and adopted), and then to siblings and parents. If no one is willing or able to act as the Executor, the court will appoint one, and their fees will be deducted from the estate.
A Transfer on Death Instrument (TODI) is a document that is recorded on your property, much like a deed. However, instead of transferring the property immediately to the grantee like a deed does, the TODI becomes active upon the death of the last surviving titleholder. Once activated, the TODI transfers all interest in the property to the beneficiaries listed, allowing the home to be held or sold without going through the probate process. This is particularly beneficial for those who do not have many financial assets or who wish to keep their home out of probate.
The initial 30-minute consultation is free. Additional consultations beyond that and prior to hiring us for services will be billed hourly at $300 per hour or will be included in the package you choose.
If you have any wills or trusts (no matter how old), you should bring them with you. Otherwise, we will send you home with homework and information we need to move forward, depending on the direction you choose to take.
Once the final drafts are completed, you will need to come to the office in person, where we will witness and notarize your signatures on all documents. After they are signed and witnessed as required by law, the documents will be considered valid.
No, Illinois wills and trusts are accepted in all jurisdictions within the United States. However, probate rules vary by state, so an Illinois trust may look different from a trust drafted in North Carolina. If you plan to move out of state permanently in the near future, we recommend setting up your estate plan with an attorney in the state where you plan to move.
All assets over $50,000, except for IRAs, checking accounts, and vehicles, should be included in your trust. The beneficiary of those accounts should be listed as the name of your trust. For example, Lauren’s investment account with Ameritrade does not list her husband as the beneficiary; instead, it lists the “LoMonaco Revocable Trust” as the beneficiary. When Lauren passes away, her husband will become the sole trustee and beneficiary of that trust, and therefore of her Ameritrade account.
Wills cannot hold assets while you alive or dead, so you do not need to change anything to adjust for your will. However, you beneficiaries on your account should match your beneficiaries in you will.
It depends on how quickly you provide us with the information we need to get everything drafted for you. Typically, from start to finish it is 1-2 months process.
A will or trust is not valid until it is signed, notarized, and witnessed by two people who cannot inherit from you. If you pass away before the document is fully executed, it is considered invalid and holds no merit in any court.
There are cheaper options online and free forms.
While you do not need to hire a lawyer to draft your will or trust, the benefit of using a local attorney instead of a website is the customer service and continuity of care. We often have clients contact us after paying for a website to draft their documents because they don’t understand them, don’t know what they mean, and can’t explain them to their children. Additionally, they have no way of updating their documents if their life changes in a few years.
At LoMonaco Law, we pride ourselves on being lifetime partners to our clients. All of our attorneys are born and raised in the Chicagoland area and enjoy having repeat clients, growing with them as their needs change. Our clients also find it comforting to know that when they pass away, there will be an actual person with a phone number and email who can be contacted for any questions about the documents or process.