The Truth About Wills, Trusts, and Avoiding Probate

 Posted on December 01, 2025 in Estate Planning

Most people believe having a last will and testament means their estate will pass smoothly to their heirs. They think a will protects their inheritance and avoids complications like fights over inheritance or making sure certain items get passed to specific people. 

Unfortunately, the reality is more complex. Wills do not avoid probate; in fact, wills practically guarantee your estate goes through probate, which can significantly reduce what your beneficiaries actually receive.

Understanding the difference between wills and trusts, and how probate affects your estate, helps you make better decisions about protecting your legacy. For help with setting up a trust and other estate-planning priorities, call our Aurora, IL wills and trusts attorney today. 

Why Wills Do Not Help You Avoid Probate

A will is a set of instructions for how your property should be distributed after death. But those instructions only take effect after the probate court validates the will and oversees the distribution process. Under 755 ILCS 5/6-1, wills must be admitted to probate to be enforced.

Probate is the court process of administering your estate. The court appoints an executor, validates the will, pays debts and taxes, and supervises distribution to beneficiaries. This process takes time and costs money. Even simple estates with a total value of more than $150,000 typically spend six months to a year in probate, while more complex estates can take years.

How Probate Reduces Your Estate's Value

Probate costs eat into what your beneficiaries receive. Court filing fees, executor fees, attorney fees, appraisal costs, and accounting fees all come from your estate before anything goes to your heirs. Attorney fees for probate work can reach thousands or tens of thousands of dollars, depending on the size and complexity of the estate.

Your $500,000 estate might lose $20,000 to $50,000 or more to probate costs before your children receive anything. This is money that should stay with your family.

Do Wills Ever Fail to Protect Your Inheritance?

Wills only control assets titled in your name alone. Many assets pass outside your will through beneficiary designations or joint ownership. If these designations are outdated or incorrect, your will cannot fix the problem.

For example, life insurance goes directly to the listed beneficiaries, regardless of what your will says. If your ex-spouse is still listed from before your divorce and remarriage, they get the money even if your will says everything goes to your current spouse.

Retirement accounts like 401(k)s and IRAs also pass to designated beneficiaries. Federal law requires your spouse to be the beneficiary unless they sign a waiver. Your will cannot override this.

Another example is jointly owned property with rights of survivorship; this type of asset automatically goes to the surviving owner. If you added your child to your house deed years ago, they inherit it automatically. Your will cannot give that house to your other children.

How Trusts Help an Estate Avoid Probate

Revocable living trusts provide a better solution than a will alone. When you set up a revocable trust, you transfer assets into the trust during your lifetime. The trust owns the property – not you individually. When you die, the trust continues to exist. The successor trustee distributes assets according to your instructions without court involvement.

Properly funded trusts bypass probate entirely. Your beneficiaries receive their inheritance faster, privately, and without court supervision eating up estate value. Better yet, you maintain complete control during your lifetime. As trustee of your own revocable trust, you can buy, sell, or change anything. The trust can be amended or revoked anytime. 

Call a Highly-Rated Aurora, IL Wills and Trusts Attorney Today

Wills alone do not protect your estate from probate costs, delays, and public exposure. Trusts can do all of this and more. Contact Gateville Law Firm at 630-780-1034 for a free consultation about your estate plan with our experienced Aurora, IL wills and trusts lawyer. We can help you create a comprehensive trust-based estate plan that ensures your beneficiaries receive the fullest value of your estate.