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What is Probate in Illinois and What Assets are Subject to It?

by Greg Coffey, Shareholder

Probate is a court-involved process to accomplish the transfer of a deceased person’s “probate assets” and to resolve the rights of creditors in those assets.

Probate assets are the assets that the deceased person owned in her or his name alone without a beneficiary designation (other than the person’s estate).  Not all assets are probate assets.

Assets owned as a joint tenant are not probate assets.

Assets for which a beneficiary is named (other than the deceased person’s estate) are not probate assets.

Assets owned in a trust established by the deceased person are not probate assets.

Not all assets pass according to a person’s will. Only probate assets pass pursuant to the terms of a person’s will.

Joint tenancy assets do not pass under a will; instead, the deceased owner’s interest passes to the surviving joint owners automatically and immediately upon the deceased owner’s death.

Beneficiary designation assets pass to the named beneficiary.  The only time a beneficiary designation asset passes under a will is if the deceased person’s “estate” is the named or default beneficiary.

Trust assets do not pass under a will; instead, the assets owned in a trust pass pursuant to the terms of the trust.  In this sense, the trust is a substitute for a will.

Even if there are probate assets, court involvement can be avoided by using a small estate affidavit.  A small estate affidavit can be used only if probate assets consist of property other than real estate and have a total value of $100,000 or less.

Whether you should own your assets as a joint tenant, or with a beneficiary designation, or as trustee of your trust, or as probate assets should not be determined solely by someone telling you that you should avoid probate.  Each alternative has its own benefits and disadvantages.

Proper estate planning evaluates how best to own your assets and make beneficiary designations in light of your objectives and circumstances.

The first step is to consult with an experienced estate planning attorney who is knowledgeable about the laws of your state and listens to you.

Greg Coffey is an experienced estate planning attorney in Illinois who works to accomplish your objectives simply and tax-efficiently.

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