What Is the Difference Between a Will and a Living Trust in Illinois?

Yorkville Attorneys Providing Estate Planning Guidance for Families

One of the most common estate planning questions in Illinois is whether a will is enough or whether a living trust is the better option. While both are valid legal tools, they function very differently, and they can lead to very different outcomes for families.

Understanding the difference between a will and a living trust in Illinois is critical if you want to avoid probate, protect your assets, plan for incapacity, and reduce stress for your loved ones. At Gateville Law Firm, our lawyers can provide guidance on the best tools to use to meet your family's unique needs.

The Core Difference Between Wills and Trusts: Probate Court

Under Illinois law, the most important distinction between a will and a living trust is the need for probate. A will only takes effect after a person's death. It must go through Illinois probate court to transfer assets to beneficiaries. However, a properly funded revocable living trust can avoid Illinois probate court, and it will allow assets to be transferred privately and efficiently.

Because Illinois probate applies to most estates that include real estate or assets above modest thresholds, probate is not a rare or theoretical issue. It is the default outcome when a trust is not in place.

How a Will Works in Illinois

A will is a legal document that names beneficiaries who will inherit a person's assets, appoints an executor to oversee the estate, and can nominate guardians for minor children. However, under Illinois law, a will has significant limitations:

• A will does not avoid probate.
• A will does not plan for incapacity.
• A will becomes a public court record when filed in probate court.
• A will can be contested.
• Probate court often leads to delays, legal fees, and court oversight.

Illinois probate can take many months or longer, and the costs will typically range between 4% and 7% of the estate.

Why a Will in Illinois Only Works Through Probate Court

In Illinois, a will has no legal effect on its own. A will only becomes effective if it is formally admitted into probate court. Until that happens, the will cannot be used to transfer property, pay bills, or distribute assets. Probate court is the legal process where the court:

• Determines whether the will is valid
• Appoints an executor
• Oversees payment of debts and expenses
• Authorizes the transfer of assets

If a will is not admitted to probate, it is essentially just a piece of paper. There is no legal authority to act under it, and assets cannot be legally transferred.

The costs required during probate will depend on the complexity of the estate, real estate issues, creditor claims, and family dynamics. If the will is challenged or contested, the process can take significantly longer, and it can become far more expensive. This is one of the primary reasons many Illinois families choose a living trust instead of relying solely on a will.

Blended Families and the Risk of Disinheritance Under Illinois Law

One of the greatest risks for families in Illinois—especially blended families—is the unintentional disinheritance of children from a prior relationship or marriage. Under Illinois law, if assets are left outright to a surviving spouse, those assets will generally become the spouse's sole property. The surviving spouse can:

• Change beneficiary designations
• Rewrite their will
• Create a new estate plan
• Leave assets to a new spouse or different beneficiaries

This means children from a previous relationship may receive nothing, even if that was never the original intent. This risk can be common when:

• A parent remarries later in life.
• One spouse has children from a prior marriage.
• Assets pass outright through a will.
• No trust or subtrust planning is in place.

Once assets are inherited outright, there is no legal requirement under Illinois law that the surviving spouse preserve those assets for stepchildren.

Why a Living Trust Offers Better Protection for Blended Families

A properly drafted living trust can address these risks by clearly defining:

• How assets will be used during the surviving spouse's lifetime
• What protections exist if the spouse remarries
• How and when children from a prior relationship will inherit assets

Trust structures such as marital trusts, family trusts, and QTIP trusts can allow a surviving spouse to be supported while ensuring that other assets will ultimately pass to children from a previous relationship. This type of planning can help to prevent children from unintentionally being disinherited while reducing conflict between spouses and stepchildren. It can avoid probate court battles while creating clarity and peace of mind for an entire family.

Key Takeaways

In Illinois, a will only works if it is admitted to probate court. Probate is often slow, expensive, and public. For blended families, relying on a will alone creates a real risk that children from a prior marriage or relationship may be unintentionally disinherited. A living trust can provide a more reliable and protective framework under Illinois law, especially when family dynamics are complex or when preserving a legacy for children matters.

How a Living Trust Works in Illinois

A revocable living trust is a legal structure that owns assets during a person's lifetime and continues after their death. Under Illinois law, assets titled in the name of a trust are not subject to probate. A living trust can provide benefits that include:

• Avoiding Illinois probate court
• Maintaining privacy
• Providing continuity if a person becomes incapacitated
• Reducing legal costs and delays
• Helping to prevent family conflict

Unlike a will, a living trust can plan for both incapacity and death, which is a critical distinction under Illinois law.

Incapacity and Guardianship Under Illinois Law

If a person becomes incapacitated, and they only have a will, Illinois courts may require a guardianship proceeding to give someone the authorization to manage their finances or make medical decisions. Guardianship matters may be public, and ongoing court supervision will be required. Court approval may need to be sought for many decisions. The entire process can be expensive and emotionally draining. A living trust, when coordinated with durable powers of attorney and healthcare directives, may allow a family to avoid guardianship entirely.

Privacy Concerns in Illinois Probate

Probate cases are public. Wills filed with the court can be reviewed by anyone, including disinherited family members. On the other hand, a living trust is private. Its terms are not filed with the court, which can help to reduce disputes, limit potential challenges, and protect a family's privacy. This can be especially important for blended families or in situations involving unequal distributions.

Asset Protection Under Illinois Law

A will typically distributes assets outright to beneficiaries. Once received, those assets may be exposed to potential losses because of claims by creditors, lawsuits, the division of property during a divorce, or financial mismanagement. A living trust can help to avoid these issues by providing protections allowed under Illinois law that can shield inheritances from divorce and creditors while still allowing beneficiaries to benefit.

Long-Term Care and Retirement Risks in Illinois

Illinois families may need to address significant long-term care costs for nursing homes or other services. These costs may exceed $8,000–$12,000 per month. A will does not provide protection against this risk. A living trust—especially when combined with subtrust planning—can protect a surviving spouse, preserve assets for children, and provide flexibility if long-term care becomes necessary. This can be particularly important for middle-class and upper-middle-class families who may not qualify for immediate Medicaid assistance.

Illinois Estate Taxes

Federal estate taxes may apply to some estates, but exemptions will allow a large portion of an estate to be passed to beneficiaries tax-free. Illinois has its own estate tax with a $4 million exemption per person, which is much lower than the federal exemption. A will does not preserve unused Illinois estate tax exemptions between spouses.

A living trust can include marital and family subtrusts that can:

• Preserve both spouses' Illinois estate tax exemptions
• Reduce or eliminate unnecessary state estate taxes
• Protect assets for children and grandchildren

Tax planning can be especially important for Illinois families with real estate, retirement accounts, businesses, life insurance, or inherited property.

Why Many "Simple" Trusts Fail in Illinois

Not all trusts are effective under Illinois law. Common problems include:

• Generic trust language
• No tax or long-term care planning
• Failure to retitle assets
• Poor coordination with beneficiary designations and powers of attorney

An unfunded or poorly designed trust may offer little protection. In some cases, probate may still be required, even if avoiding probate was the original goal of an estate plan.

Legal Help With Wills and Living Trusts From a Yorkville Estate Planning Lawyer

For Illinois families who own real estate, want to avoid probate, value privacy, are concerned about incapacity, want to protect children or a surviving spouse, or may be affected by Illinois estate taxes, a living trust-based estate plan is often the best solution. A will is better than no planning, but for many Illinois families, it is not enough.

At Gateville Law Firm, we can help families determine the best tools to use to protect their assets and provide for the needs of different family members. Reach out to our Yorkville, IL estate planning attorneys by calling 630-780-1034 and set up a free consultation where we can discuss your needs and begin building a comprehensive plan for you.