Estate Planning Memo « »
Your Will
Every competent adult should consider signing a will, regardless of wealth, age, marital status or health. A will is a formal written document which becomes operative at your death in order to:
- Appoint a guardian for minor children;
- Direct how your assets are to be distributed (e.g., to pour assets over into your living trust); and
- Designate an executor who is responsible for taking inventory of your property, paying debts and taxes and distributing assets as you direct.
If You Die Without a Will (“Intestate”)
Illinois law contains “default” rules on how your assets will pass to family members if you die without a will. These default rules may conflict with what you would have selected in your will. The Probate Court will select its own choice of guardian for your minor children and appoint an administrator to handle your financial matters (after purchase of a surety bond). Although disclaimers may be carefully and quickly implemented in some instances to minimize estate taxes, your estate will not automatically benefit from estate tax planning which is available by having a will and trust.
Probate
Assets which pass under Probate Court administration include assets owned in your own name alone at death without a surviving joint tenant or “pay on death” beneficiary. Small estate affidavits can sometimes be used to transfer assets in Illinois when the assets in a decedent’s name total under $100,000.
Non-Probate Assets
Examples of assets which often do not require Probate include:
- Assets titled in a revocable living trust (i.e., owned by you in your name as trustee of your living trust);
- Assets which are established with provisions to “pay on death” to named surviving beneficiaries (e.g. securities, bank accounts, life insurance, retirement accounts); and
- Assets held in joint tenancy (with rights of survivorship) which pass to one or more surviving joint tenants.