If you’ve ever wondered, “What is a living trust?”, you’re not alone. Many people assume a Will is enough to pass on their estate. But a living trust offers a way to do it faster, privately, and without involving the probate court at all.
We’ve worked with countless families who believed they had everything in place. That's until probate revealed how complicated, expensive, and public settling an estate can really be. That’s when the benefits of a living trust become crystal clear.
Unlike a Will, a properly prepared living trust can help your family avoid the probate process entirely. It allows you to manage and distribute your estate privately, efficiently, and exactly as you intended, without waiting on the court to validate anything.
In this article, we’ll explain how a living trust works, when it makes sense, and the kind of flexibility and protection it can offer, not just for your estate, but for the people you love.
Probate is expensive, it takes a long time, and it violates your privacy. Joint tenancy also has a whole different set of problems attached to it. By now, you are probably wondering, "What is a living trust, and is there a way that I can be sure that my assets pass to my loved ones, my wishes are followed, but without going through the Probate court?"
It’s a great question, especially for anyone who wants more control and less court involvement. The answer is, YES. The Living Trust (also known as a Revocable Trust or an Inter Vivos Trust) is an effective and affordable alternative to a Will that avoids the Probate system.
A Living Trust is a written agreement which an attorney prepares for you that takes effect immediately (unlike a Will, which does not become effective until after death). If a Living Trust is properly drafted and you transfer your assets to your Trust (a process called "funding" your Trust) it will work every time. It will avoid Probate of your assets at death.
We know this because over the past 24 years, we have seen Living Trusts prepared by our office, work over and over again to keep families out of the Probate Court. Learn what happens when an estate goes through probate. The Living Trust also provides you with the ability to manage your financial affairs without a court Guardianship if you become disabled.
You've probably heard about it. Your friends and relatives may have even prepared a Living Trust. Should you prepare one? If your total estate is less than $100,000.00 in value and you do not own any real estate, then a Living Trust is not for you.
But if your estate is worth more than $100,000.00 or you own real estate and you would like to distribute your estate to your heirs quickly, in a totally private manner, with little or no expense, then a Living Trust is the right estate planning document for you.
If you’ve been asking yourself what is a living trust supposed to do that a Will doesn’t, the answer lies in how it’s structured and how it works after you’re gone.
You retain an attorney, and he/she will prepare a written agreement for you after conducting an analysis of your assets and determining what your wishes and objectives are. This agreement is established by you (the "Grantor" or "Settlor") and the assets in the Trust are managed and distributed by you as the "Trustee." You wear both "hats." Under Illinois law, this agreement, once signed and witnessed, creates a new legal entity that can own your assets (house in Illinois, a condominium in Florida, bank accounts, stocks, mutual funds, bonds, etc.).
You can also name your Trust as the beneficiary of your insurance policies, retirement plans, IRA's and annuities. You can always add additional assets to your Trust. Simply provide the name of your Trust to the bank, stockbroker, mutual fund company, etc. and sign their form.
To put your real estate (local or out of state) in the Trust, the attorney prepares and records a new deed for you. The Trust even uses your name. (a Trust created by John and Mary Smith would be called the "John and Mary Smith Living Trust"). You (and your spouse) retain full control over the assets in your Trust during your life.
You decide what to buy and when to buy. You decide when to sell. You (and your spouse) are the only persons authorized to withdraw interest and dividends. You (and your spouse) are the only persons who can use the principal. You don't give up any control! You don't even change the way you file your income taxes. If you became disabled, special provisions are included in your Trust for the continued management and control of your Trust.
But how does the Trust avoid Probate? Remember, Probate is required to transfer assets that you own at the time of your death. But if you transfer all of your assets to your Trust (except for furniture, clothing, and personal effects), you won't own any assets in your name when you pass on.
Your Trust owns your assets, and your Trust is a legal entity that continues to live, after you're gone. Your family doesn't need the Probate court to transfer the title to your assets after your death because you already transferred those titles to your Trust while you were alive.
Living Trusts appoint someone you choose to take over the operation of your Trust after you are gone. That person is called the Successor Trustee. Your Trust includes specific instructions telling your Successor Trustee what to do. There are no delays, no attorneys, no court costs, and it remains totally private. Your heirs can actually receive their inheritance in a matter of weeks.
Unlike a Will, your Trust has the ability to keep on working after your death, if you want it to. It can provide for a distribution of funds over a period of time (as long or short of a duration as you want) for those who might need it.
For example, you probably want to control the distribution of funds to a person who is a minor child, who has a disability, who is in an unstable marriage, or who has poor money management skills. You can even set up your Trust so that it "bulletproofs" your children's inheritance from lawsuits, creditor's claims, and divorces.
The Trust allows you to leave instructions for those who need continuing protection and financial guidance. For those who don't require that type of control, the Trust can provide for a distribution immediately following your demise. A trust is not just a way to avoid Probate. It gives you PEACE OF MIND, knowing your estate will be distributed to the persons you want, in the amount you want, when you want, and how you want.
Oh, by the way, in Illinois, it is nearly impossible to successfully contest and overturn the distribution provisions of a trust. So, if there happens to be that "someone" who you do not want to receive an equal part or any part of your estate, once that instruction is included in your Trust, you can rest assured that it will be followed to the letter. That same instruction in a Will, is nearly always contested in the Probate Court.
Most people don’t come to us asking for a living trust. They come with questions—about probate, privacy, delays, or how to protect a loved one who isn’t ready to manage an inheritance. And at some point in the conversation, they almost always ask: what is a living trust, and why didn’t anyone tell me about this sooner?
That moment matters. Because a living trust isn’t just a legal document, it’s a way to take control, to stay private, and to make sure the people you love are cared for on your terms, not the court’s. If you want to avoid probate, minimize costs, and create a plan that truly reflects your wishes, it starts with understanding your options.
Our experts are available to create an estate plan utilizing a Living Trust that will work for you and the legacy you want to leave behind. Please contact us if avoiding Probate is a concern to you, to schedule a FREE initial consultation.