Wills & Probate
What is a Will?
A Will provides for the distribution of your property at the time of your death in any manner you choose (subject to the forced heirship laws of some states that prevent disinheriting a spouse). Your Will cannot, however, govern the disposition of properties that pass outside your probate estate (such as joint tenancy property, life insurance, retirement plans, and employee death benefits) unless they are payable to your estate.
Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives. If a Will provides for the outright distribution of assets to the surviving spouse, it is sometimes characterized as a simple will. If the Will establishes one or more trusts, it is often called a Testamentary Trust Will. Alternatively, the will may leave probate assets to a trust created during your lifetime (i.e., your "Living Trust”), in which case it is called a “Pour Over Will”. Whether a Living Trust or Will plan is executed, the purpose of holding property for beneficiaries subject to trust provisions (as opposed to outright distribution) is to ensure continued property management and creditor protection for surviving family members, provide for charities, and to minimize taxes.
In addition to providing for the intended disposition of your property to the surviving spouse and your children, there are a number of other important objectives that may be accomplished in your Will:
You may designate a guardian for your minor child or children if you have survived the other parent and, by judicious use of a trust and appointment of a trustee, eliminate the need for bonds and supervision by the probate court regarding the care of each minor child’s estate.
You may designate an executor of your estate under your will and eliminate the need for a bond.
You may choose to acknowledge or otherwise provide for a child (e.g., stepchild, godchild, etc.) in whom you have an interest, an elderly parent, or other individuals.
Wills – the Minimum Estate Plan
A Will Allows You To Pass Your Assets To Whom You Wish. If you die without a Will (or Living Trust estate plan), the state of Illinois writes a Will for you under its intestacy laws.
These laws generally provide that:
If you are married with children, 50% of the property you own in your own name will go to your spouse and 50% will go to your children.
If you are married without children, everything will go to your spouse.
If you are single without children, everything will be split between your parents, brothers and sister in equal parts, allowing the surviving parent (if one is dead) a double portion, and to children of a deceased brother/sister, the portion such deceased brother/sister would have taken.
Trap for the unwary:
Assets with beneficiary designations or held in joint tenancy with a surviving co-owner are not subject to the dispositive provisions of a Will.
Does a Living Trust save $$ when compared to a Will?
Generally “YES” because probate costs are avoided. However, there are more “upfront” attorney fees in setting up a Living Trust.