There are three principal types of Wills that may be created:
This type of Will provides for probate assets to be distributed outright to the legatees and devisees at death. In Illinois, if the aggregate value of the probate assets exceeds $100,000 or if there is any real estate, then a probate proceeding must be initiated in the Circuit Court (the Probate Court). If assets are distributed to a minor child, then a guardianship estate in probate court may also be necessary. The probate court in a guardianship court will give substantial weight to the guardians named in the Will, but is not required to nominate those individual(s) if the court feels that it is not in the best interests of the minor child.
Will with Testamentary Trust
This type of Will may be used when one wants to leave probate assets in trust at death, but does not set up a Revocable Trust. This type of will is no longer as popular as several decades ago. With the additional flexibility available with a Will and Revocable Trust together, we generally do not advise clients to use this type of Will, given the relative costs. A Will with Testamentary Trust(s) is again generally subject to proceedings in probate court if the assets are in excess of $100,000 or there is real estate. However, if probate assets are distributed to a testamentary trust for the benefit of minor children, then a guardianship estate may be avoided.
This type of Will is used in conjunction with a Revocable Trust. If the Revocable Trust is properly funded, then a proceeding in probate and/or guardianship court may be avoided. However, if the Revocable Trust was not fully funded during lifetime, then the Pour-Over Will serves as a “safety net” by instructing the executor to transfer those assets to the Revocable Trust after the testator’s death. This ensures that all of the estate can be settled as a single, cohesive whole. However, like all Illinois wills, it does not avoid probate if the aggregate value of the assets passing by the will exceeds $100,000, or if there is any real estate. Therefore, it is very helpful that all assets be properly titled in the Revocable Trust during lifetime.