Do All Estates in Illinois Have To Go Through Probate?

 Posted on September 16, 2025 in Adoption

When a person dies in Illinois, it is not automatic that their estate must go through probate. Whether probate is required depends on the size of the estate and the type of assets involved. Sometimes, it depends on the structure of the estate plan.

Some estates qualify for simplified procedures, while others can avoid probate entirely through proper planning. Understanding when probate applies can help families prepare for what comes next. Working with experienced lawyers is the first step to ensure that what happens to your estate after your death is in line with your wishes.

What Is Probate in Illinois?

Probate is the legal process during which a court oversees the transfer of your property after you pass away. In Illinois, the Probate Act of 1975 sets the rules for how probate works. The court ensures that debts are paid, taxes are filed, and remaining property is distributed to heirs or beneficiaries.

Not every estate requires a long and complicated probate case. If someone dies with a small estate, equaling less than $100,000 in personal property and no real estate held solely in their name, the family may use a Small Estate Affidavit under 755 ILCS 5/25-1. This affidavit allows assets to be transferred without a full court process, saving time and money. However, if the estate involves real estate or significant assets, or if disputes arise, the probate court will typically get involved.

What Can You Do To Avoid Probate in Illinois?

Illinois law gives families several tools to keep assets out of probate, and for good reason. The key is making sure your property passes automatically to someone else when you die, and there are several ways to do this.

Revocable Living Trusts

A revocable living trust allows you to transfer property into the trust during your lifetime. You still control and use the property as the trustee, but when you die, a new trustee that you named distributes assets according to your instructions without involving probate. A properly funded trust avoids probate because the property is no longer in your name alone. It belongs to the trust.

Joint Tenancy and Tenancy by the Entirety

Another way to avoid probate is through joint tenancy with right of survivorship. This means two or more people own property together, and when one owner dies, their share does not go through probate. Instead, it passes directly to the surviving owner by law.

There is also tenancy by the entirety, a special form of ownership available only to married couples for their primary residence under 735 ILCS 5/12-112. This means that both spouses are treated as a single legal owner. If one spouse passes away, the surviving spouse automatically becomes the sole owner without going through probate. In addition to avoiding probate, tenancy by the entirety offers extra protection because creditors of only one spouse cannot force the sale of the home.

Transfer-on-Death Registrations

Illinois law allows several types of property to be transferred directly to beneficiaries through a transfer-on-death (TOD) registration. This avoids probate because the asset passes automatically once the owner dies. Common examples include:

• Securities: Stocks, bonds, and other investment accounts can be registered with a TOD beneficiary under 815 ILCS 10.

• Vehicles: The Illinois Vehicle Code permits owners to title a car with a TOD beneficiary, so the vehicle transfers without probate.

• Real estate: The Illinois Residential Real Property Transfer on Death Instrument Act allows homeowners to record a deed that names who will inherit the property, so it passes directly to them when the owner dies.

These registrations are easy to set up and can be revoked during your lifetime.

Payable-on-Death Designations

Bank accounts and similar assets can be made payable on death (POD) to a named person. Under 205 ILCS 625, once the owner dies, the funds transfer automatically to the beneficiary. Like TOD designations, POD accounts are easy to set up and update.

These strategies work best when combined, fFor example, many people use a living trust for major assets like a home, and POD or TOD designations for accounts and investments.

Will My Business Need To Go Through Probate in Illinois?

Businesses can create special challenges during probate. If you own a sole proprietorship in your name only, the business assets may have to go through probate. This can cause delays and may even force the business to shut down until the court decides who owns it.

To avoid this, business owners often place company interests into a trust or form entities, such as limited liability companies (LLCs). Under the Illinois Limited Liability Company Act,  LLC membership interests can be transferred according to the operating agreement, often avoiding probate. Corporations with properly documented shareholder agreements can also allow shares to pass outside of probate. Without clear instructions, heirs may face disputes over management, taxes, and succession.

What Are the Benefits of Avoiding Probate in Illinois?

Avoiding probate provides many advantages:

• Saves time: Probate can take many months or even years. Assets that avoid probate are usually transferred much faster.

• Lowers costs: Court fees, attorney fees, and executor expenses can reduce the estate’s value. Trusts and designations avoid much of this.

• Provides privacy: Probate records are public. Trusts and beneficiary designations remain private.

• Offers flexibility: Planning tools let you control how and when heirs receive property, which is not always possible through probate.

These benefits explain why so many Illinois families use trusts and other estate planning strategies. By reducing court involvement, you give your loved ones a smoother transition during a difficult time.

Speak With a DuPage County, IL Estate Planning Attorney Today

Estate planning is about more than dividing property. It is about protecting your loved ones and giving them peace of mind after your death. A carefully designed plan can reflect your values, honor your wishes, and reduce stress for your family during a difficult time.

At A. Traub & Associates, a female-owned and led law firm, attorney Angel Traub has spent more than 20 years building a trusted team that combines legal knowledge with compassion, guiding families in Wheaton and throughout DuPage County with care and dedication. To ensure your estate plan reflects your wishes, contact our Wheaton, IL estate planning lawyers at 630-426-0196.