Free Consultations: 630-427-4407
Many people assume that once they create a living trust, they no longer need a will. As Illinois estate planning attorneys, we can tell you that this assumption can lead to unwanted legal and financial problems for families. A trust is a powerful tool for avoiding probate and managing assets during your lifetime and after your death, but it does not cover every aspect of your estate and leaves your estate without a plan to address common uncertainties. Even if you have a trust, a properly drafted will remains a very important planning tool and is an essential component of a complete trust-based estate plan in Illinois.
In Illinois, estate planning is governed primarily by the Illinois Probate Act of 1975 (755 ILCS 5/) and the Illinois Trust Code (760 ILCS 3/). While the Probate Act outlines how wills are executed, how estates are administered, and what happens when a person dies without a valid will the Illinois Trust Code outlines how trusts are established and administered. A trust can hold title to many of your assets, but there are often items that may fall outside the trust for multiple reasons:
Examples of an expectancy would be an inheritance due to the decedent but not yet received at time of death, an ongoing lawsuit for money damages, or past-due child support. Without a will, these assets would be distributed according to Illinois intestacy laws, not according to your wishes.
A will serves as a safety net for any property not titled in the trust’s name. Under 755 ILCS 5/4-1, anyone over the age of 18 who is of sound mind can create a will to determine how their property will be distributed upon death. This ensures that if an asset was left out of the trust, it can be distributed from the estate to the trustee of your trust and, ultimately, will still pass to beneficiaries with all the privacy, terms, and controls set from in your living trust, rather than passing through the default rules of intestate succession under 755 ILCS 5/2-1.
755 ILCS 5/2-1(a): “If there is a surviving spouse and also a descendant of the decedent, 1/2 of the entire estate goes to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.”
Without a will, this statutory formula will control distribution, which may not align with your estate plan, especially if you have remarried, gone through a divorce, or have children from multiple relationships.
Even if you have trust, a last will and testament remains essential because it allows you to nominate a guardian for your minor children, something preferably that your trust will not do. The will acts as a legal safeguard to ensure that you have indicated your preferences for who would care for your children should the unexpected happen.
One of the most common estate planning tools used with a trust is a type of last will and testament called a pour-over will. This document directs that any assets not already in your trust at the time of death should be “poured over” into the trust. While these assets may still go through probate, the pour-over will ensure that they end up being distributed under the trust’s terms. When a will pours over to a trust there is much more privacy in the public record with regard to who inherits what and when.
This coordination is especially important for individuals who have experienced a divorce. Under 755 ILCS 5/4-7(b), a divorce automatically revokes any provisions in a will in favor of a former spouse. 760 ILCS 3/605(b) sets forth that an Illinois “judicial termination of marriage” revokes every provision of a settlor’s trust that is revokable by the settlor as pertaining to the settlor’s former spouse in a trust or trust amendment that was executed by the settlor prior to the entry of the judgement for judicial termination of marriage of the settlor.
However, if the trust is not updated after divorce, certain undesirable provisions may remain in place. For instance, while the law may operate to disregard former spouses named to succeed a settlor as trustee, and gifts to former spouses, the law does not similarly affect family members of former spouses. For instance, if a trust executed before a judicial termination of marriage names settlor as trustee, names former spouse as successor trustee, and names former spouse’s brother as next successor trustee, then, unless amended, upon the passing of the settlor, former spouse’s brother is considered the settlor’s choice of successor trustee.
Likewise, if a will maker’s last will and testament executed before a judicial termination of marriage names her former spouse as the beneficiary of her estate, names the former spouse’s parent as the contingent beneficiary, and names the person’s grandchildren as next level contingent beneficiaries then, unless the last will and testament is revoked or validly updated, the person’s estate would pass to the former spouse’s parent, not the will maker’s own grandchildren. This is why having both a trust and a will (and updating them after any major life event) is critical. Keeping both your will and trust current ensures your intentions are honored.
A trust is excellent for avoiding probate, maintaining privacy, managing inheritance for minor children or disabled beneficiaries, addressing the needs of blended families, and managing complex assets, but it is not a complete substitute for a will. A will allows you to:
By having both, you create layers of protection that work together to ensure your estate is handled exactly as you want.
We do not recommend it. Even with a trust, a will provides backup protection for assets not transferred into the trust and allows you to name guardians for minor children. Without a will, any property outside the trust is distributed under Illinois intestacy laws.
A pour-over will directs that any assets not already in the trust at your death should be transferred into the trust. While these assets may still be subject to probate, they will ultimately be distributed according to the trust’s terms.
Generally, no. Once assets are properly titled in your trust, they are governed by the trust document, not your will. The will only controls assets that remain outside the trust at your death. However, an attorney may assist you to create an estate plan where your will exercises a power of appointment over trust held assets or contains interrelated provisions in the will and trust concerning specific gifts.
If you die without a valid will or trust, your estate will be distributed under 755 ILCS 5/2-1, which may not reflect your personal wishes.
Yes, but for consistency, it’s best to review both at the same time. Changes in one may affect the other.
At SBK Law Group, we help clients in Downers Grove and throughout the Chicago area protect their assets and their families with well-coordinated wills and trusts. Whether you already have a trust or are starting your estate plan from scratch, we can ensure your documents work together to carry out your wishes.
Contact our DuPage County estate planning lawyers at SKB Law Group by calling 630-427-4407 to receive your free consultation. Our offices in Lombard, Illinois, serves clients throughout Chicago and the surrounding suburbs.
