Legal Question in Wills and Trusts in Illinois

It all depends on how the surviving spouse's interest is referenced on the ownership document (the deed if this is real estate). If the title to the property is in the names of both spouses "as joint tenants with right of survivorship" which is the more common fact pattern, the surviving spouse automatically owns 100% of the property. The surviving spouse now needs to recognize that a will or trust is needed to make sure on the death of the survivor, that the property goes to the survivor's intended beneficiary.

I am sorry for your loss.

If bank accounts, vehicle titles, deeds, and other items are jointly held then generally there is not a need to open an estate (no need to file a probate case). The will, however, should be filed with the Clerk of the Circuit Court within 30 days.

With real estate, be careful, because both names being on a deed, in and of itself, does not mean title is jointly held. The title would have to be held as joint tenancy or tenants by the entirety, with proper designations.

While you could leave assets jointly titled, it is best to have the vehicle titles and investments changed. Real estate title can usually wait, but have the information changed with the County Treasurer for property tax billing purposes.

If you find that there are some assets that were solely in the late spouse's name, you may be able to use a Small Estate Affidavit ($100,000 limit) to transfer assets.