Do I Need Probate in Illinois If There Is a Trust?

The Short Answer

It depends. Having a trust does not automatically mean probate is unnecessary. A trust generally affects property it actually owns or controls, while property left in an individual name may still require a different transfer or probate process.

What Property Does a Trust Generally Control?

A revocable living trust generally controls property that was transferred to it or otherwise became subject to the trust. That can include real estate, financial accounts and other assets, depending on how ownership was documented.

When Can Probate Still Be Needed?

Probate may still be needed when property remains solely in the deceased person’s name and there is no effective trust ownership, beneficiary designation, transfer-on-death arrangement, survivorship feature or other non-probate transfer method.

What About a Pour-Over Will?

A pour-over will is often used with a living trust to coordinate an estate plan. It can direct probate property to the trust, but it does not necessarily mean that property avoids probate before reaching the trust.

Can a Small-Estate Procedure Sometimes Apply?

Illinois has a small-estate procedure that may be available for certain qualifying personal property. Eligibility depends on statutory requirements, the type of property and the circumstances of the estate. It is not a universal substitute for probate and does not automatically solve real-estate title issues.

What About Real Estate?

Real estate often requires review of the actual deed and any later recorded documents. A trust schedule or estate-planning document does not necessarily control title if the recorded ownership says something different.

Does Avoiding Probate Mean There Is No Administration?

No. A successor trustee may still have responsibilities involving trust property, debts, expenses, records, tax matters and distributions. The scope of those responsibilities depends on the trust and the facts.

Bottom Line

A trust may avoid probate for some assets and not others. The answer depends on the trust, will, deeds, account ownership, beneficiary designations and other documents. An attorney can review how each asset is supposed to pass and explain whether probate or another procedure may be needed.