What is an estate plan?
An estate plan is typically a will and/or a trust that directs how your financial assets, including your house, and personal belongings are to be distributed after you have died.
A will is a written document that is filed with the clerk of the court following your death. You choose the executor of your will who carries out your wishes.
A living trust is a written document that directs how your financial assets are managed during your lifetime and after death. A trust is governed by the trustee.
In a living trust, you are the trustee during your lifetime. After you die, the successor trustee carries out your wishes according to the directions you put in the trust.
A key difference between a will and a living trust is a will is a public document accessible to anyone who goes to the county courthouse where your will was filed. A trust is a private document that is shown only to those who have a need to see it such as the beneficiaries.
If I use a will instead of a trust to transfer my property upon death, won’t the whole world be able to easily get a copy of it?
No. Although Illinois law requires that your original will be filed with the clerk of the court within 30 days of your death, your will is not easy to access. For example, the clerk of the court does not put your will online for the public to view. If someone wants to look at your will, they will have to go to the clerk of the court and ask to see it. That means if you die in McHenry County but lived most of your life in Cook County, your Cook County neighbors will have to travel to McHenry County to look at your will.
What happens if I die without a will or trust?
Your assets will be distributed according to the Illinois Probate Act. For example, if your spouse is living and you have adult children, half of your assets will go to your spouse and the other half will go to your children to be divided equally among them per stirpes.
What does per stirpes mean?
It’s a Latin term that means “by roots.” Dividing your assets per stirpes allows your assets to be distributed according to your family tree. So if one of your children is deceased but had children, the assets that would have gone to your child will be divided equally among your surviving grandchildren.
What happens to my money if my children are minors and I do not have a will or trust when I die?
When your children turn 18, they will receive their share of the money. Without an estate plan, your young adult children will be able to spend the money as they see fit without any supervision from anyone.
Can I make arrangements to take care of my pet in the event of my death?
Yes. The Illinois Pet Trust Act allows animal owners to create a trust for their domestic animals and/or pets. That means you would be able to set aside money for a trustee to manage for your pet’s welfare and select a caregiver for your pets after you are gone. The law also allows you to name a person who will enforce the terms of the trust to make sure the trustee carries out your intentions.
What if I my biggest asset is my house and want to leave it to someone when I die?
You can accomplish this easily. A transfer on death instrument allows you to transfer your real estate upon your death to beneficiaries that you name such as your children. Known as a TODI, it is recorded by your county’s recorder of deeds before your death. After you die, your beneficiaries have up to two years to decide whether to accept the real estate.