Christopher S. Nudo
What is Probate and When Does it Occur?
In Illinois, probate is the act of substituting one’s free will by the court system and is really designed to protect creditors of an estate. In the making of a will, a person is capable of choosing to gift their assets to whomever they want. Unfortunately, the will in and of itself does not provide adequate authority, which means the executor cannot fulfill the intention of the decedent until the court system determines that the will is authentic and appoints an executor. Through the probate process, the court system oversees the transfer of the assets from the decedent’s name to the beneficiaries.
Why Would Someone Want to Avoid Probate?
Probate is an incredibly expensive and inefficient process that provides little to no benefit for the beneficiaries under the will. When probate is necessary, the beneficiaries have to deal with lengthy processes in order to obtain the assets to which they are entitled. In Illinois, the probate process is designed to protect the decedent’s creditors and ensure that those creditors receive what’s owed to them.
There are other reasons a person would want to avoid the probate process. The first is that it is public, which means the family’s estate matters are aired in a public setting for anyone to hear. The next one is that the will in the probate process can be challenged by any heir who disagrees with it. The third reason is that there can be family disagreements between heirs and challenges during the probate process.
Are There Ways to Avoid Probate?
There are three main ways to avoid probate. The first one is through the creation of a trust. Living trusts are the most popular. A second option is a land trust. A land trust is a trust that only holds title to real estate in Illinois. A land trust has a very narrow application but is very practical to use when dealing with estates in which real estate is the main asset.
Another way to avoid probate is through beneficiary designations. For example, a person could assign a beneficiary designation to their life insurance policy or retirement accounts in order to eliminate the possibility of that policy going through probate.
The third (and my least favorite) way to avoid probate is through co-ownership. For example, a person could put their child’s name on their bank account or home. While this method of avoiding probate is effective, it can create a myriad of other problems.