After someone dies, one of the first questions the family asks is whether they need to go through probate. Usually they’re hoping the answer is no. And sometimes it is. But it depends entirely on what the person owned, how they owned it, and whether the right planning was done while they were still alive.
Probate in Illinois is a court supervised process. A judge validates the will (if there is one), approves the payment of debts and taxes, and authorizes the distribution of assets to heirs. It’s methodical. It’s public. And it’s slow. Most probate cases take somewhere between six months and a year to resolve, though complicated estates can drag on longer. Attorney fees and court costs typically run between 2% and 5% of the estate’s value, depending on the complexity.
For families who are grieving and just want to move forward, that timeline and those costs can feel like a lot. So let’s break down when probate is actually required, when it’s not, and what your family can do to avoid it. A Naperville, IL probate lawyer can help you understand your options and guide you through the process with clarity and confidence.
When Probate Is Required
The trigger for probate in Illinois comes down to two things: what the deceased person owned, and how they held title to it.
Real property in the deceased’s sole name. This is the most common trigger. If someone owned a house, a condo, vacant land, or any other real estate titled solely in their name with no joint tenant, no trust, and no transfer on death deed, probate is required to transfer that property. Period. There’s no dollar value exception for real estate. Even a vacant lot worth $20,000 requires probate if it’s in the deceased’s name alone.
Personal property over $150,000. Illinois recently raised this threshold. As of August 2025, under Public Act 104-0346, the small estate affidavit limit went from $100,000 to $150,000 and motor vehicles are now excluded from the calculation. If the deceased’s personal property (bank accounts, investments, personal belongings, but not cars) exceeds $150,000 and there’s no trust or other transfer mechanism in place, you’re looking at probate.
So the general rule is this: real estate in the deceased’s sole name always triggers probate, and personal property in the deceased’s sole name triggers probate if it exceeds the $150,000 threshold. If both conditions are absent, no solely owned real estate and personal property under $150,000, full probate usually isn’t necessary.
When Probate Is Not Required
A lot of assets pass outside of probate entirely, no matter how much they’re worth. These are assets that have a built in transfer mechanism, meaning the asset itself is set up to go directly to someone specific when the owner dies, without needing a court to authorize it.
Joint tenancy with right of survivorship. If two people own a home or a bank account as joint tenants, the surviving owner automatically becomes the sole owner when the other dies. No probate needed. This is how a lot of married couples hold their primary residence, and it works exactly as intended as long as both names are on the title.
Beneficiary designations. Life insurance policies, 401(k)s, IRAs, annuities, and similar accounts pass directly to whoever is listed as the beneficiary. The money doesn’t flow through the estate. It goes straight from the financial institution to the person you named. This is true regardless of what your will says. The beneficiary designation on the account trumps the will every time.
Payable on death (POD) and transfer on death (TOD) accounts. Most banks and brokerages let you add a POD or TOD designation to your accounts. It’s essentially a beneficiary designation for accounts that don’t have one by default. When you die, the account goes to the person you named. Simple, free to set up, and completely avoids probate.
Assets held in a trust. This is the big one. A revocable living trust lets you transfer ownership of your assets, your house, your bank accounts, your investment portfolio, into the trust during your lifetime. When you die, the successor trustee you named distributes those assets according to the trust terms. No court hearing. No filing fees. No waiting. The whole point of a living trust is to keep your estate out of the probate system.
Transfer on death deeds for real estate. Illinois allows TOD deeds, which let you name a beneficiary for your real property. You record the deed during your lifetime, retain full ownership and control, and when you die, the property passes automatically to the person you named. It’s one of the simplest ways to avoid probate on a home without setting up a full trust.
The Small Estate Affidavit: A Simpler Path for Modest Estates
If the deceased’s estate is small enough (personal property under $150,000 with no solely owned real estate) the family can use a small estate affidavit under 755 ILCS 5/25-1 instead of opening a probate case.
Here’s how it works. After at least 30 days have passed since the date of death, the person entitled to the assets prepares a sworn affidavit stating who they are, what they’re claiming, and that no probate case has been opened. They present that affidavit to the bank, brokerage, or other institution holding the deceased’s assets. The institution releases the funds.
No court. No judge. No attorney fees for probate (though having an attorney prepare the affidavit is still a good idea to make sure it’s done right).
The 2025 change was significant for a lot of families. Under the old rules, a $30,000 car could push a modest estate over the $100,000 limit and force a full probate. Now, vehicles are excluded from the calculation entirely. A family with $140,000 in bank accounts and a $35,000 car qualifies for the affidavit process under the new rules. Under the old rules, they would have needed probate. That’s a meaningful difference.
What If There’s a Will But Nothing to Probate?
This happens more often than you’d expect. Someone has a will, but by the time they die, everything they owned was in joint tenancy, had beneficiary designations, or was in a trust. There’s nothing left for the will to govern.
In that case, probate isn’t necessary. The will isn’t invalid. It just doesn’t have any work to do. All the assets pass through their own mechanisms, and the will sits there as a backup.
That said, Illinois law requires that anyone who has possession of a will file it with the county clerk within 30 days of learning about the person’s death. You don’t have to open a probate case, but you do have to file the document. It becomes part of the public record.
The Real Lesson: Plan Ahead
Almost every family that ends up in probate court didn’t have to be there. They either had no estate plan at all, or they had a plan on paper that was never properly executed. A trust that was signed but never funded, meaning the assets were never actually transferred into it, doesn’t avoid probate. It just adds confusion.
The best time to set this up is now, while everyone’s healthy and there’s no urgency. Create a revocable living trust and actually fund it. Name beneficiaries on every account that allows it. Add TOD designations to your real estate. Review your plan every few years to make sure it still reflects how your assets are titled and who you want to receive them.
Probate isn’t the end of the world. Courts handle it every day, and the process does eventually get assets where they need to go. But it’s slow, it’s public, it costs money, and for most families, it’s completely unnecessary with the right planning in place.
Not sure whether your family would need to go through probate? Contact Kravets Law Group, we’ll look at how your assets are titled, identify any gaps, and help you put a plan together that keeps your family out of court.