Law Blog

Estate planning refers to the process which details how a person’s assets should be distributed after death. An estate planner utilizes wills and various types of trusts in order to distribute a person’s assets in the way that the person wishes. Using a will or a trust to distribute an asset is a strategic choice. This entry focuses on using a will.

Any asset that is not transferred through a trust, or subject to joint-ownership, is transferred through the State probate process. Probate refers to the court-supervised process in which assets are distributed to creditors and beneficiaries. A will is used to direct where the assets in probate should be distributed. Without a valid will, State law will decide how a person’s assets are distributed. Probate laws can significantly vary depending on the state. For instance, one state might require that all assets are first passed to the spouse, while another state might say that half of all assets pass to the spouse, while the remainder pass to the children.

A valid will is necessary for a person to control where their assets go after death. However, creating a will can sometimes be an afterthought. Perhaps a person is young and thinks they have plenty of time to create a will, or a person doesn’t own any valuable assets and thinks that a will isn’t necessary. These and other excuses are traps that should be ignored, since assets can sometimes randomly appear. For instance, say Stan Smith dies in a car accident, and his estate successfully sues for wrongful death and wins a monetary award for one million dollars. Who will ultimately receive that money? Say Stan has a wife and children. Perhaps Stan would have preferred to divide the entire amount between his wife, children, a few of his close friends, and his favorite charity. And now say, unfortunately, Stan died without a will. According to the Illinois Probate Act, half of the money would go to the children, and half would go to his wife. 755 ILCS 5/2-1(a). Since Stan died without a will, it is impossible for his estate to take care of all of the people he would have liked to take care of with this money.

This kind of situation can also result with physical assets, such as jewelry or other family keepsakes. Take the situation of a grandmother who dies unexpectedly and who did not have a valid will. The grandmother had a necklace that one particular grandchild always adored, and the grandmother would love for that grandchild to have it someday. Without a will, there is no guarantee that this necklace would pass to the grandchild, even though that is what the grandmother would have preferred.

If you have any questions about creating a will, the Sherwood Law Group has the answers you seek. Marc Sherwood, Founder and Principal of the Sherwood Law Group, has decades of experience with helping Illinois residents set up the estate plan that accomplishes exactly what they want upon death. Just remember, waiting to create a will takes control over your assets out of your hands and puts it into the laws of the State. Don’t wait, and call Sherwood Law Group today to see what services we can offer to your estate.