Do All Wills Go Through Probate? 

Creating a last will and testament is one of the most important steps in protecting your assets and providing for your loved ones. However, many high-net-worth individuals and business owners in Illinois misunderstand what happens after a will is created. One of the most common questions we get is: Do all wills go to probate court?

The answer depends on several factors, including the value of the estate, the type of assets involved, and how ownership and beneficiary designations are structured. Our Naperville estate planning attorney can explain when probate is required, when it can be avoided, and how strategic estate planning can minimize its impact.

What Is Probate and Why Does It Matter?

Probate is the legal process used to authenticate a deceased person’s will. It identifies and values their assets, pays outstanding debts and taxes, and distributes any remaining property to beneficiaries. In Illinois, the probate process is governed primarily by the Illinois Probate Act (755 ILCS 5/).

The probate court ensures that the will is valid, that creditors are treated fairly, and that the estate is administered according to law. While this process provides oversight and protection, it can also take months, or even years, depending on the size and complexity of the estate.

For business owners or those with diverse holdings such as real estate, partnerships, or intellectual property, probate can become particularly complicated. It may involve multiple appraisals, business valuations, and disputes among beneficiaries or shareholders. That is why many people prefer to structure their estate plans to reduce or avoid probate whenever possible.

When Does an Estate Have to Go Through Probate in Illinois?

Under Illinois law, an estate generally must go through formal probate if the total value of the deceased person’s solely owned assets exceeds $100,000 or if the person owned real estate in their name alone.

If the total probate assets fall under this threshold, the estate may qualify for a simplified procedure known as a Small Estate Affidavit. This affidavit allows heirs to transfer property without a court proceeding, provided that all beneficiaries and creditors agree. 

For individuals with substantial estates, however, this simplified procedure rarely applies. Business ownership interests, investment portfolios, and real property typically push an estate well above the statutory threshold.

Which Assets Can Bypass Probate?

Not every asset you own must pass through probate. Illinois law allows certain types of property to transfer automatically upon death or through legal mechanisms outside of the probate process.

Jointly Owned Property

Assets owned in joint tenancy or tenancy by the entirety automatically pass to the surviving owner when one co-owner dies. Common examples include joint bank accounts or marital homes. Because ownership transfers by operation of law, probate is not required for these assets.

Trust Assets

Property in a revocable living trust does not go through probate. The successor trustee manages and distributes the trust property according to your instructions. This is one of the most effective estate planning tools for high-net-worth individuals seeking to maintain privacy and continuity of management after death.

Beneficiary Designations

Accounts with payable-on-death (POD) or transfer-on-death (TOD) designations (such as life insurance policies, retirement plans, and certain investment accounts) transfer directly to the named beneficiaries without court involvement. Keeping these designations current is an essential part of avoiding probate complications.

Transfer-on-Death Instruments for Real Estate

Illinois law allows you to record a Transfer on Death Instrument (TODI) for real property. This deed names a beneficiary who automatically receives ownership upon your passing. The property does not need to go through probate, although it remains under your full control during your lifetime.

Business Succession Tools

For business owners, planning ahead through buy-sell agreements, shareholder agreements, or trust ownership structures can prevent business interests from becoming entangled in probate. Without proper planning, the death of an owner can freeze business operations or trigger disputes among successors.

What Are the Advantages of Avoiding Probate?

Avoiding probate is not about evading the law, but about ensuring efficiency, privacy, and control. Probate is a matter of public record, which means that anyone can access details about the estate, its assets, and its beneficiaries. For families and business owners concerned about confidentiality, this exposure can be problematic.

Additionally, probate can delay access to funds that heirs may need immediately and may generate unnecessary expenses. Attorney’s fees, court costs, and appraisal fees can all reduce the estate’s value. By transferring assets outside of probate through trusts or beneficiary designations, families often preserve more of the estate’s wealth.

For people who own multiple properties across state lines, avoiding probate can prevent additional probate proceedings in other jurisdictions, each with its own fees and timelines.

Can a Will Help You Avoid Probate?

A will itself does not avoid probate. In fact, the will is what triggers the court’s review and supervision of the estate. However, a will remains an essential part of any estate plan because it provides instructions for distributing personal property, appoints an executor, and names guardians for minor children.

To minimize probate while still maintaining control, many Illinois residents combine a will with other estate planning instruments, such as revocable trusts, powers of attorney, and transfer-on-death designations. A skilled estate planning attorney can coordinate these tools to create a comprehensive strategy tailored to your assets and goals.

How Can a Lawyer Help You Limit Probate Exposure?

Every individual’s financial and family situation is unique. A well-designed estate plan not only determines who inherits your assets but also how efficiently and privately those assets are transferred. An attorney can:

• Review your asset structure to determine what will pass through probate.
• Create trusts or beneficiary designations to move assets outside probate.
• Draft wills and powers of attorney that coordinate with those strategies.
• Assist business owners with succession planning and asset protection.
• Ensure compliance with Illinois statutes and minimize tax implications.

For high-net-worth families and business owners, estate planning is as much about preserving legacy as it is about transferring wealth. With proper legal guidance, you can design an estate plan that provides clarity, reduces conflict, and ensures that your wishes are carried out with minimal court involvement.

Call a Naperville, IL Estate Planning Lawyer Today

Probate does not have to be inevitable. With the right planning, you can simplify the transfer of your estate and protect your loved ones from unnecessary delays or expenses. To discuss your estate plan or learn how to avoid probate through trusts and other legal tools, contact Gierach Law Firm at 630-756-1160.

Our Naperville estate planning attorney has decades of experience helping high-net-worth individuals and business owners design strategic, tax-efficient estate plans. We offer personalized guidance and a sophisticated approach to protecting your wealth and your legacy.