The Difference Between a Will and a Trust in Illinois: What You Need to Know

Tom
May 19
5 min read

Updated: May 20

When it comes to estate planning in Illinois, two of the most commonly discussed tools are wills and trusts. Both serve the primary purpose of transferring assets to your loved ones, but they do so in different ways and come with unique advantages and disadvantages. At The Real Estate Law Firm, we believe that understanding these differences is crucial for making the right decisions for your estate, your family, and your peace of mind.

What Is a Will?

A will, formally known as a Last Will and Testament, is a legal document that outlines your wishes for the distribution of your property and assets after you pass away. It can also name guardians for minor children and designate an executor to carry out your wishes.

Key Features of a Will in Illinois:

Probate Required: In Illinois, a will must go through probate, a court-supervised process that validates the will and oversees asset distribution.
Public Record: Once filed in probate court, a will becomes part of the public record.
Naming Guardians: Wills are ideal for parents who need to legally name guardians for minor children.
Cost-Effective to Create: Wills are typically less expensive to draft than trusts.

What Is a Trust?

A trust is a legal entity created to hold and manage your assets for the benefit of certain people or entities, known as beneficiaries. Trusts can be revocable (living trusts) or irrevocable, and they operate during your lifetime and after your death.

Key Features of a Trust in Illinois:

Avoids Probate: Assets in a trust are not subject to probate, allowing for quicker and more private distribution.
Privacy: Trusts do not become part of the public record.
Continued Control: In a revocable living trust, you can modify or revoke the trust while you're alive.
Complexity and Cost: Trusts are more complex and typically more expensive to establish than wills.

Major Differences Between a Will and a Trust

Feature	Will	Trust
Goes Through Probate?	Yes	No (if properly funded)
Effective When?	After death	Upon creation
Public or Private?	Public	Private
Allows Naming Guardians?	Yes	No
Control Over Distribution?	Basic instructions only	Detailed and flexible control
Contestability	Easier to contest in court	Harder to contest
Cost to Create	Lower upfront cost	Higher upfront cost, lower long-term

At The Real Estate Law Firm, we often help clients choose between wills and trusts based on the complexity of their estate, the urgency of asset protection, and the need for privacy or long-term management.

Which One Should You Choose?

The right estate planning tool depends on your personal and financial circumstances. Here’s a breakdown:

Choose a Will If:

Your estate is relatively simple.
You’re comfortable with probate.
You want to name a guardian for minor children.
You’re looking for a cost-effective estate planning tool.

Choose a Trust If:

You want to avoid probate.
You value privacy.
You have complex assets (like real estate, business interests, or large investment portfolios).
You want greater control over how and when assets are distributed.

Real-Life Scenario:

John and Lisa, homeowners in Illinois, wanted to ensure their children would receive their home and financial assets without the delays of probate. After consulting with The Real Estate Law Firm, they established a revocable living trust and funded it with their home, investment accounts, and a life insurance policy. Upon their passing, their children received the assets promptly, privately, and without court involvement.

How Do Wills and Trusts Affect Real Estate in Illinois?

This is where The Real Estate Law Firm offers unmatched expertise. In Illinois, real estate often accounts for the most significant portion of an estate. Whether it’s your primary residence, rental property, or land, how it is titled will directly affect whether a will or trust is more suitable.

With a Will: Property must go through probate, which may delay transfer of ownership for months or even years.
With a Trust: Property can be transferred immediately upon death, avoiding court proceedings.

We recommend that any Illinois resident with real estate holdings consult with The Real Estate Law Firm to properly title and fund real estate into a trust if avoiding probate is a priority.

Why Work with The Real Estate Law Firm?

At The Real Estate Law Firm, we combine in-depth knowledge of Illinois probate law with a client-first approach. Our team will:

Evaluate your estate planning needs.
Advise on whether a will, trust, or both is appropriate.
Draft and execute all documents.
Help fund your trust by properly titling your real estate and other assets.

Can You Have Both a Will and a Trust?

Yes, and many people do. This strategy is known as a "pour-over will", which is used alongside a trust. It ensures that any assets not already in the trust at the time of your death are "poured over" into the trust and distributed according to its terms.

The Real Estate Law Firm routinely sets up pour-over wills to provide comprehensive coverage and peace of mind for our clients in Illinois.

Final Thoughts

Both wills and trusts are effective tools, but they serve different purposes. The decision between the two depends on your unique needs, assets, and goals. For Illinois residents—especially those with real estate holdings—the right guidance can make all the difference.

The Real Estate Law Firm is here to guide you through every step of the estate planning process with precision, compassion, and unmatched legal expertise.

FAQs

Do I need both a will and a trust in Illinois?
Many people benefit from having both. A will can handle guardianship and assets outside the trust, while the trust manages the bulk of your estate efficiently.
Can I avoid probate with a will?
No, wills must go through the probate process in Illinois. Trusts, when properly funded, can avoid probate.
How long does probate take in Illinois?
It can take anywhere from 6 months to 2 years, depending on the complexity of the estate.
What happens if I die without a will or trust in Illinois?
Your estate will be distributed according to Illinois intestacy laws, which may not reflect your personal wishes.
Can a trust protect me from creditors?
Irrevocable trusts can offer some creditor protection, while revocable trusts generally do not.
Can I change my trust later?
Yes, if it’s a revocable living trust. Irrevocable trusts, however, cannot easily be changed.
Is a will cheaper than a trust?
Yes, wills are generally cheaper to create but may result in higher costs after death due to probate.
What assets should go into my trust?
Real estate, bank accounts, investments, and business interests are commonly included to avoid probate.
Is my will valid in Illinois if it was written in another state?
Most out-of-state wills are valid in Illinois if they comply with the laws of the state where they were written, but review by The Real Estate Law Firm is recommended.
Can I write my own will or trust?
Legally, yes—but it's risky. DIY documents often result in court challenges or costly mistakes. It’s always safer to work with professionals like The Real Estate Law Firm.