An Illinois resident generally may devise or bequeath his or her property at death through the creation of a will. Absent a will, the laws of intestacy (meaning “without a will”) of the state of Illinois will dictate the manner of disposition of assets for an Illinois resident as provided under the Illinois Rules of Descent and Distribution. Intestacy is a process whereby a decedent’s property is divided among his or her immediate family or more remote relatives in accordance with Illinois law. In the unlikely situation where the decedent has no relatives, his or her assets would “escheat” to the state of Illinois and/or the respective county in which the decedent resided or where the real property is located.
Estate planning is the process that individuals go through to arrange for the transfer of their personal wealth. An individual usually has two goals: (1) to ensure that the property will pass to designated recipients in the appropriate form, and (2) to minimize taxes and other costs. A will is one of the most common tools to accomplish both objectives. The simplest definition of a will is “a document by which a person directs his or her estate to be distributed upon death.” An Illinois resident generally may devise or bequeath property at death through the creation of a will and is encouraged to do so. Absent a will, the laws of intestacy of Illinois will dictate the manner of disposition of assets for an Illinois resident. Intestacy is a process whereby a decedent’s property is divided amongst immediate family or more remote relatives in accordance with Illinois Compiled Statute Sections (ILCS). In the unlikely situation where the decedent has no surviving spouse and no known kindred of the decedent (i.e., beyond descendants of great grandparents), only then would the assets escheat to the state of Illinois under the Rules of Descent and Distribution.
A will differs from another frequently used testamentary instrument, a revocable trust. One of the significant differences between a revocable trust and a will is that a will has no legal effect until the testator’s death, at which time it is probated or submitted to the court and subject to a formal administrative process. On the contrary, a revocable trust is effective upon execution and funding and stays a private document. The executor (also referred to as a personal representative in some states) under a will has no authority until the testator’s death and upon his or her appointment by the court. Once an executor is appointed, some of the rudimentary duties and responsibilities include:
- marshaling or securing of the decedent’s assets
- identification and payment of the decedent’s debts and estate administrative expenses
- notification to creditors and beneficiaries of the estate –and–
- distribution of the decedent’s assets to beneficiaries
Simply stated, the executor is charged with the responsibility of paying all of the decedent’s legally enforceable debts and distributing all of the decedent’s property. Notably, probate makes the will available for viewing by the public at large—thus, an estate plan effected through a will is public information. In contrast, a revocable trust is a private document after death, which is disclosed only by the trustee to the trust beneficiaries, and perhaps some third parties with whom the settlor or grantor and trustee have dealings (e.g., title companies, banks, brokerage firms, etc.).