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Avoiding Probate in Illinois



After the death of a family member, the process of settling the deceased person’s estate can be expensive and time-consuming. With proper planning, most or all of a person’s estate can be settled without having to go through the probate process.


Probate is a court supervised procedure in which a deceased person’s executor or administrator makes arrangements to pay any of the person’s debts, dispose of assets like real estate, bank accounts, and personal property, and disburse assets and funds to the person’s heirs. Probate is necessary if assets are being distributed according to a will, or according to the rules of interstate succession if there is no will. There are many mechanisms which will allow a person’s assets to be distributed resulting in avoiding probate in Illinois. This article will explore a few of those.


Real Estate


Probate is not necessary to transfer real estate that is jointly owned, in certain circumstances. Married couples can own real estate together as tenants by the entirety, which allows the title to the property to transfer automatically to the surviving spouse.  Other individuals can own property as joint tenants with the right of survivorship, which also allows the property to transfer to the surviving owner or owners automatically.  The type of tenancy can be decided when the property is acquired, or can be made at a later date by preparing and recording a new deed.


Bank Accounts


Any jointly owned bank or stock account will automatically transfer to the remaining owner(s) after one owner dies.


Corporations, Partnerships, and Other Legal Entities


The bylaws or organization documents of a partnership or LLC can specify what happens if one of the owners of the entity dies or retires.  A corporation will automatically survive the death of a stockholder, but the owner’s stock is part of his estate and would be subject to probate, unless the stock was jointly owned with another person.


Vehicles


The title to a vehicle may also be held by more than one person, in which case the remaining title holder will not have to go through probate in order to sell or use the vehicle.


Trusts


Any asset, including real estate, personal property, stock accounts, vehicles, etc., can be transferred to a trust during the owner’s life. A trust is a document prepared while the owner of assets has the capacity to make the decisions as to how property will be used during life, and distributed at death.  The owner names a trustee, which can be the owner himself while he or she is able, as well as successor trustees who will take over this role when the owner no longer has the capacity, or is deceased. There are advantages and disadvantages to setting up a trust; an experienced estate planning attorney can explain whether a trust is appropriate, and, if so, what type of trust best fits the needs of the individual and his family.


Legal Advice


A comprehensive estate plan will save both money and time.   The key is to prepare now, even though it is a difficult subject.  Talk to an Illinois estate planning attorney about the best plan for yourself and your family, and review your estate plan periodically to make sure you are up to date with changes in your life and in the law. 


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