Estate Planning: Why a Last Will and Testament is NOT your Best Option (and a Living Trust is)

 Posted on October 10, 2022 in Estate Planning

Yorkville and Oswego IL Estate Planning Attorneys

What is a Last Will and Testament?

A Last Will and Testament is a written, legal document that expresses a person’s wishes as to how their property (known as their estate) should be distributed after they pass. A Last Will and Testament also designates a person (known as the Executor) to manage the estate until it is fully distributed. When the creator of the Will dies, the Will must then go through a time-consuming and often costly process called probate court.

What is Probate Court?

Probate is the legal process that a person’s estate must go through when they die either with a Last Will and Testament or when they have no legal estate planning documents stating how they wish their estate to be distributed (this is called intestate). Probate court oversees the transfer of the estate’s property to the deceased person’s heirs, according to state law. When a deceased person does have a Will, the court must first authenticate the Will and then authorize the Executor of the Will to pay any leftover expenses from the estate and then distribute remaining estate property according to the terms of the Will. 

Even if a person has a valid Will, probate court is often time-consuming and costly because of court costs and attorney’s fees. Attorney’s fees for a probate case vary drastically depending on several factors including the state in which the deceased person was living when they died (this is the state that controls the estate) and the size of the estate in question. However, the average amount for attorney’s fees in probate cases in Illinois is anywhere from $2,500-$5,000. This amount does not include court costs, filing fees, or other fees associated with the court itself, which also vary depending on the above listed factors. Therefore, sometimes it is not cost-effective to hire a probate lawyer to probate a Will, because the costs of a probate proceeding outweigh the benefits to the estate.

If I Want to Avoid Probate Court, but I Want to Control Where My Property Goes When I Die, What Should I Do?

Instead of passing property at death through a Last Will and Testament, a better method is through a Living Trust. A Living Trust is practical and cost-effective because it avoids the probate court process. 

What is a Living Trust and What Does it Do?

A trust is a fiduciary arrangement that allows a third party (the trustee) to hold title to assets (property) on behalf of certain beneficiaries. The creator of the trust selects the beneficiaries of the trust property. As holder of the title, the trustee is subject to the condition of keeping or using the property for the benefit of the beneficiary. A "living" trust (sometimes called an "inter vivos" trust) is a trust you create while you are alive. 

A trust has a similar function to a will but is often a much better choice for a person looking to control what happens to their property after they pass. The creator of a trust selects who will be the beneficiaries. Then, those who were selected will receive the trust property when that person dies.

Why is a Living Trust Better than a Will?

There are many benefits to having a Trust rather than a Will. The largest benefit of the Living Trust being the minimizing of estate expenses. A Trust is much more cost-effective because a Will must go through probate court, whereas a Trust does not. 

In summary, for a person looking to protect their assets and designate where their assets go when they die, a Living Trust is recommended rather than a Last Will and Testament because it gives flexibility, avoids the pain of probate court, is cost-effective, practical, and timely.

Experienced, Reputable Estate Planning Attorneys in Kendall County

Estate planning is strongly recommended for everyone. Without a proper plan in place, the process of settling a person’s estate after they die can be emotional, costly, and overwhelming for the loved ones that are tasked with doing so. Planning of time can help protect beneficiaries of your property, reduce the amount of taxes taken by the IRS when transferring assets, and helps to eliminate family disputes that can arise during the distribution of an estate. Hiring an effective and experienced estate planning lawyer is critical so that you know you are making the best decision for yourself and your family and that it is being done properly, according to the law. At Peace of Mind Asset Protection, LLC, we have the proper knowledge and experience to assist with the best estate planning option for you. Contact us today at 630-882-2467. Call us if you need a reliable trust and will attorney in the Yorkville, Oswego, Sugar Grove, Aurora, Plano, Sandwich, Bristol, and Newark areas of Kendall County (and surrounding areas). We offer in-person, virtual (zoom), and home (or hospital) visits.

Sources:

www.nolo.com

https://www.illinoislawyers.com/attorneys-fees-in-illinois-probate-cases/