By G. Timothy Leighton

March 22, 2024 — Probate is the court-supervised process involving distribution of a deceased person’s property. It is sometimes referred to as “estate administration.” In Illinois, probate is usually necessary when a person owns real estate at their death and/or has assets without beneficiary designations totaling $100,000 or more, particularly in the absence of effective trust and estate planning. There may be some exceptions to that general rule. Probate typically takes nine months to two years and costs between three and ten percent of the value of the probate estate (sometimes more, sometimes less).

The most common ways to avoid probate are:

  • Set up a Revocable Living Trust. By transferring your assets such as your home, bank accounts and investment accounts into a trust, you can avoid exposure to probate. Attorney Tim Leighton has over 30 years of experience of assisting Clients with setting up and administering trusts.
  • Check your beneficiary designations. It is important to ensure that the beneficiary designations are current on your life insurance, retirement accounts and any other account that allows a beneficiary designation. If the designated beneficiary and contingent beneficiaries are deceased, then the insurance policy or account automatically goes to your estate, thus creating the possibility of probate depending on the value of the policy or account and the value of other assets that the decedent owns at his or her death.
  • Set up a Transfer on Death Instrument (“TODI”). This is a relatively new option for disposition of residential real estate in the State of Illinois. The individual(s) who holds the title to their home can designate a beneficiary by executing a TODI and recording the TODI with the recorder’s office of the county in which the property is located. This option may not be suitable for everyone. One downside to this method is that the beneficiary designation becomes public information when the TODI is recorded in the county land records. The TODI must be recorded while you are still alive.

There are times when an Estate might benefit from probate. If the decedent had exposure to significant debts or liabilities, particularly contingent or potential claims, or potential challenges from disgruntled beneficiaries, or sometimes other situations, the Estate’s Personal Representative might choose to file for probate in order to terminate exposure to those potential challenges. The Testator or Testatrix might intentionally leave title personally of certain assets in order trigger that probate.

Contact Leighton Legal Group today to schedule a 30 minute courtesy initial consultation to learn more about which option(s) may be right for you.

Important note: This information is designed to provide a general overview with regard to the subject matter covered. The author and publisher and host are not providing legal, accounting, or specific advice to your situation. You should consult with the professional advisors of your choice for specific advice.