How Can You Keep Your Home Out of Probate Court in Illinois?

 Posted on October 29, 2024 in Estate Planning

If you own a home in Illinois, ensuring that ownership of it will transfer smoothly to whomever you choose without getting tangled up in probate should be a top priority for you. A probate case in Illinois typically takes between one and two years to complete, with complex or contested estates at the longer end of that estimate. The probate process is also public, which means details about your estate are accessible to anyone with an interest. During the probate process, your loved ones may not have access to the assets in your estate, leading to financial difficulties.

Fortunately, there are three legal options available to you that can enable your beneficiaries to avoid the costly and time-consuming public probate process for real estate. When you have an experienced Oak Park, IL probate attorney from the Law Office of Vincent C. Machroli, P.C. helping you prepare your estate plan, you can rest easy knowing your estate plan fully protects your loved ones. The following are the 3 ways that you can be sure that ownership of your home passes to your family members, or to whomever you choose, without the necessity of going through probate

1. Obtain a "Transfer on Death" Instrument

A "Transfer on Death Instrument" ("TODI") allows the owner of residential real estate property to designate one or more beneficiaries who will receive ownership of the property when the owner dies. This type of document completely bypasses probate court and is a simple, relatively inexpensive estate planning tool. The completed "TODI" needs to be recorded with the County Recorder’s office by the current owner of the home.

The beneficiary can be one or more individuals, an organization, or a charity. Contingent beneficiaries can be named in the event the intended beneficiary dies before the owner dies. In order to obtain a "TODI", the owner of the property must be 18 years of age or older and must be of sound mind and memory. A "TODI" also requires listing the legal description of the property, along with a notarized grantor’s signature, two witness signatures, and recording with the Recorder’ s office in the county where the home is located.

2. Establish Joint Tenancy Ownership for Your Home

In Illinois, real estate can be owned in joint tenancy with another person with the right of survivorship. This can get accomplished by the production of a Deed, which gets recorded with the county Recorder’s office.  Joint tenancy means that when one of the owners dies, his or her interest in the home automatically, legally passes to the co-owner, thus avoiding probate.  If there are two owners and one dies, the home becomes the sole property of the other owner. If there are three owners and one dies in a joint tenancy situation, the other two owners now jointly own the property. In a joint tenancy situation, the surviving joint tenant or tenants will need to update the records of the county Recorder’s office regarding the correct ownership of the property following the other tenant’s death.

3. Use a Revocable Living Trust to Avoid Probate for Your Home

An individual could choose to obtain a "Revocable Living Trust" as a part of his or her estate planning. Any assets placed into this Trust will not need to go through the probate process. The owner of the Trust can put assets, including a home, into the Trust, and can name a Trustee and a successor Trustee in the Trust. The Trustee is often the same person as the Grantor of the Trust, which allows him or her to maintain control of assets until death or incapacitation. The successor Trustee is named by the Grantor to handle asset distribution following the death of the Grantor.  

Contact a Hillside, IL Estate Planning and Probate Lawyer

The vast majority of probate cases could be avoided if an experienced estate planning attorney, such as an Oak Park, IL probate attorney, is retained prior to death. Probate can be an intimidating process, especially for those who have just lost a loved one. When you choose the Law Office of Vincent C. Machroli, P.C., you will benefit from a knowledgeable legal professional who can guide you through creating an estate plan that not only avoids probate, but also can help those who are facing probate. For highly-skilled assistance in any aspect of estate planning, contact the Law Office of Vincent C. Machroli, P.C. at 708-449-7404 to schedule your free initial consultation.