Will vs. Trust

  • Robert S. Thomas,
  •   Estate Planning
  •   Comments Off on Will vs. Trust

What is a Will?

  • A Will or a Last Will and Testament is a written document by which a person for whom a will is written, who is called the testator, states how the testator wants his/her property distributed after his/her death
  • It does not take effect until after the testator dies. Until the testator dies, the testator may change or revoke the will at any time and as many times as the testator may desire. This means a will is revocable
  • Illinois also requires that the will be signed by the testator and witnessed by at least two witnesses and notarized by a Notary Public
  • A witness cannot be a beneficiary under the will

What is a Trust?

  • A trust is a contract agreement between the person who creates the trust, who is called the trustor, grantor or settlor, and the person appointed by the trustor to oversee the management of the property in the trust, this person is called the trustee
  • The trust instrument and Illinois law impose certain duties and powers to the trustee
  • A trust that goes into effect during the lifetime of the trustor is known as a living trust
  • A trust that does not become effective until the death of the trustor is called a testamentary trust and a testamentary trust is generally within a will
  • In order for property to become part of the trust, the title to the property must be changed from the name of individual owner to the name of the trust
  • When property is put into a trust the property is transferred from the estate of the owner to the trust
  • All property that is in the trust passes to the beneficiaries immediately upon the death of the trustor

What is the difference between the two?

The basic difference between a will and a trust is that all property distributed under a will goes through probate. However if the person dies and the value of the estate is less than $100,000.00, the estate is not subject to probate and can be transferred via a small estate affidavit.

What happens if someone dies without a will?

If a person dies without a will, a state statute dictates the order of the beneficiaries. The order starts with closest blood relatives (including the spouse) as the beneficiaries. The property does not go to the state unless there are no blood relatives alive. For more information contact my firm.


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