Will v. Trust

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.

A Will does not take effect until after the testator dies. This means a will is ambulatory. 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.

To be a valid will, the testator must intend to make a will (and not some other document like a contract) at the time the will is signed by the testator, Illinois also requires that a will is in writing, signed by the testator and witnessed by at least two witnesses. A witness cannot be a beneficiary under the will. Finally, a will does require any particular format or a particular use of words.

In a will, a testator may dispose of two types of property: real property is anything that is fixed to the ground (i.e. buildings) and personal property which is everything else. A devise is a gift of real property made by a will from the testator to the beneficiary and a bequest is a gift of personal property made by a will.

If a person leaves his property in a will, this is called testate or a testamentary disposition and intestate or intestacy means a person died without a will.

If a person dies without a will, a state statute dictates the order of the beneficiaries. Basically, the statute starts with closest blood relatives (including the spouse) as the beneficiaries. The property does not go to the state unless there is no blood relatives alive.

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.

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 trustor conveys certain identified property to the trustee once the trustee holds legal title of the property. The conveyance is made according to the terms of a trust agreement. Neither the trustee nor the trustor owns the property as does a natural person. This means that consequences of ownership of property by a natural person may be avoided.

A trust is created for the benefit of certain designated person or organizations know as beneficiaries, who will receive the property from the trust. A beneficiary may be entitled to all or some portion of the income of the trust, or all of the property of the trust, or both.

The trustor, trustee, and beneficiary may be the same person. 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 and, consequently, all property that is in the trust passes to the beneficiaries immediately upon the death of the trustor. If the trust instrument exists but the title to the property is not changed from the individual to the name of the trust, then that property remains in the estate of the individual and must go through probate.

For any questions or concerns, please feel free to contact the law office of Arlington Heights attorney Robert S. Thomas. 

LAW OFFICE OF ROBERT S THOMAS

1655 N Arlington Heights Rd, Suite 300West

Arlington Heights IL 60004

847-392-5893 phone
info@attorneyrobertthomas.com

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