Have you attended an estate planning seminar or read promotional materials that claim you must have a living trust to avoid probate? Has a salesperson come to your home with frightening information about probate? What is probate, and how can it be avoided?
Probate is the administration of a person’s estate though the courts. Probate can be done if a person does not have a will and it is required to make a will effective. This is a very common misunderstanding. People often say to me, “I want a will to avoid probate,” or “I have a will, so my estate won’t go through probate.” That is not correct.
A will is not valid unless a court determines that it is valid through the probate process. The process is necessary to determine that the will is the valid last will of the deceased person. Otherwise, third parties would have no way of knowing if a will was valid. For example, I could present a will signed in 2000 to a bank and try to claim a deceased person’s account. Someone else could come to the bank later with a will signed in 2024 that revoked the previously signed 2020 will.
The basics of probate are the same for every estate. Someone (usually the executor named in the will) files a petition with the circuit clerk asking that the will be probated and an executor be appointed. If there is no will, the petitioner asks that an administrator be appointed. The petitioner has to swear that he believes the will is the valid last will of the deceased person. The petitioner also has to set forth who the deceased person’s heirs are, generally what you would think of as next of kin – a surviving spouse or children. A hearing is then held where the judge reviews the petition and the will and signs an order admitting the will to probate – essentially saying that the will is valid – and appointing the executor. The circuit clerk then issues letters testamentary, which is a document stating that the executor is authorized to act for the estate.
After the executor is appointed, he must give notice to all of the heirs (whether they are named in the will or not) and any person named in the will (whether they are heirs or not). Anyone wishing to contest the will has six months to do so.
The executor must publish notice in a paper published in the county once a week for three weeks telling creditors that they have six months from the date of the first publication to file any claims against the estate. The executor must also send notice directly to any of the deceased’s creditors of which he is aware.
The estate must remain open for the six-month period. During that time, the executor can act for the estate by paying bills, such as funeral costs and legal fees. The executor can also sell estate assets during that time, but the proceeds must stay in the estate account until the claims period has expired. If an executor distributes estate assets before all claims have been resolved, he will be personally liable if the estate is not sufficient to pay valid claims.
Probate and wills do not control many of a person’s assets. Assets that are held jointly with rights or survivorship, such as bank accounts and often real estate, pass automatically to the surviving owner at the first owner’s death. Assets with beneficiary designations, such as retirement accounts or life insurance, pass to the named beneficiaries. Likewise, assets with pay on death designations, such as bank accounts, pass to the named beneficiaries. It is not uncommon for none of a person’s assets to pass under his will.
Although there can be benefits of probate (such as resolving creditor claims or having your designated executor make decisions), if you want your estate to avoid probate, you can do the following:
•For real property, own the property as joint tenants with your spouse and/or file a transfer on death instrument that transfers the property directly to your beneficiaries at your death;
•For retirement accounts and life insurance, make sure your beneficiary designations are up to date. If the person you have named is deceased, the assets will likely be paid to your estate, creating a need for probate;
•Add pay on death designations to your bank account, and
•Own your vehicles jointly with your spouse and add beneficiary designations to them (this can be done through the secretary of state).
If you own assets at your death that are not joint or do not have a beneficiary designation, these can still be claimed by your beneficiaries without probate if they are not real property and the value of the assets other than vehicles does not exceed $150,000. In that case, Illinois law provides the assets can be claimed with a small estate affidavit. This law was amended in August of 2025 to increase the maximum value to $150,000 from $100,000 and to provide that the value of vehicles does not count toward the $150,000 total.
Another way to avoid probate is to use a trust, commonly called a living trust. Such trusts are revocable and provide for the disposition of your assets at your death as a will does but without going through probate. If you are interested in creating a living trust, you should consult with an estate planning attorney.
This article is for informational and educational purposes only and does not constitute legal advice.