A probate proceeding only adds to the list of stressors experienced by heirs after the death of a loved one. It is not true that a will can avoid the need for a probate proceeding. Yet, even with a will, an executor must begin a court proceeding following the decedent's death in order to properly distribute all of the decedent's property.  In the state of Illinois, probate lasts at least six months and is required if the decedent had at least $100,000 in assets or owns any real estate in his or her own name alone. 

While probate requires a court proceeding to ensure that the estate is properly distributed, the existence of a living trust can allow a decedent's survivors to avoid the courtroom altogether.  This is because a living trust exists as a separate legal entity from the person who creates it.  A living trust is similar to a box into which a person puts his or her property.  Once that person puts his or her property into the box, he or she no longer legally owns the property.  The box, or trust, does.  Still, as the trustee of the trust, the creator can control the property in the trust and choose what property goes into the trust.  Upon death, assuming the trust has been properly funded, the decedent does not directly own any property in his own name which requires distribution via the probate process as the property is legally owned by the trust. The provisions of a living trust include the designation of successor trustee to take over the office of trustee upon the death of the drafter of the trust.

While a living trust may simplify the process of property distribution following death, the creation of a living trust can require some effort. The title of all assets and/or beneficiary designations must be transferred to the trust. If the trust is not properly funded, any property left out of the trust may trigger the need for probate.

For example, real estate is typically transferred to a living trust whereby the individual or couple sign and properly file a deed.  A new signature card for bank accounts and certificates of deposit are executed with the bank which show the living trust as the owner. Ownership of investment accounts are transferred into the name of the trust and the trust can be named as beneficiary of life insurance policies. Your attorney should review tax protected assets such as IRAs and annuities to determine the proper way that the beneficiaries on such instruments should be designated.

Flexibility is a major attribute of a living trust in that it is revocable in that it can be changed or terminated at any time prior to the death of the drafter. It is strongly recommended that you ask your attorney if you have questions regarding use of a living trust to avoid a probate proceeding.

This article is intended to present general information for educational purposes, is not legal advice and should not be relied upon in connection with any particular matter. The reader is advised to immediately retain their own separate legal counsel with respect to any specific legal issue.  Rights to bring a claim will expire through the passage of time by the applicable statute of limitations.