How Are Wills and Trusts Different in Illinois?

 Posted on June 30, 2025 in Estate Planning

Wills and trusts are two common tools used in estate planning, but they serve different purposes and function in different ways under Illinois law. Whether you are planning for the future of your children or trying to avoid probate, understanding the distinction between these documents is essential, and an experienced Wheaton, IL estate planning attorney can help guide you as you create a comprehensive estate plan.

What Is a Will?

A will, also known as a "last will and testament," is a legal document that outlines your wishes for the distribution of your property after death. In Illinois, wills are governed by the Illinois Probate Act of 1975, 755 ILCS 5/1-1. This law explains the requirements for executing a valid will, including the need for the document to be signed by the testator and witnessed by two competent individuals.

In a will, you can name an executor to manage your estate, designate guardians for minor children, and specify who should receive particular assets. However, all wills in Illinois must go through probate, unless the estate qualifies for a simplified process under 755 ILCS 5/25-1.

What Is a Trust?

A trust is a legal arrangement where one party, the trustee, holds and manages property for the benefit of another, the beneficiary. Trusts can be either revocable or irrevocable. A revocable trust can be changed or canceled by the person who created it at any time, allowing them to keep control over the assets. An irrevocable trust cannot be modified once established, which limits control but offers stronger asset protection and potential tax benefits. Trusts can also be established during your lifetime or created through your will upon death, and trusts are governed primarily by the Illinois Trust Code under 760 ILCS 3/101.

What Are the Main Differences Between a Will and a Trust in Illinois?

While both wills and trusts allow you to direct the distribution of your assets, they differ significantly in terms of execution, function, and legal consequences. Some key differences between the two include:

• Probate: Wills must be filed with the probate court, which can take months to resolve and incur court fees. Trusts avoid probate entirely when properly funded.

• Privacy: Wills become public records during probate. Trusts remain private documents.

• Timing: A will only takes effect upon death. A trust can manage your assets both during your lifetime and after death.

• Complexity and cost: Wills are usually simpler and cheaper to draft, while trusts can be more expensive and require more ongoing management.

• Flexibility: Trusts offer greater control over how and when beneficiaries receive assets, such as holding funds for minor children or staggering distributions over time.

Each tool serves its own purpose and can complement the other. Many comprehensive estate plans in Illinois include both a will and a trust. Even if you have a trust, it is often a good idea to have a will as well. Talk to your attorney about what works best for your estate.

Talk to a Lombard, IL Estate Planning Attorney Today

Making sense of estate planning tools can be challenging. However, the knowledgeable DuPage County, IL estate planning lawyers at A. Traub & Associates can explain your options based on an assessment of your unique circumstances. Contact us at 630-426-0196 to schedule a free consultation and start planning for your family’s future.