Southern Illinois Estate Planning Lawyers

A will is the most fundamental estate planning document. It tells the court who gets your property, who serves as executor of your estate, and — if you have minor children — who will be appointed as their guardian. Under Illinois law, a valid will must be in writing, signed by the testator (or by someone at the testator’s direction and in their presence), and attested by two credible witnesses. See 755 ILCS 5/4-3.
A common misconception is that having a will avoids probate. It does not. A will is actually a set of instructions to the probate court. Your estate still has to go through the probate process for a judge to validate the will and authorize the executor to act. That said, a will is still essential. Without one, Illinois intestacy laws determine who inherits your property — and those default rules may not match your wishes at all. For example, if you die with a spouse and children, your spouse only receives half of your estate under 755 ILCS 5/2-1. The other half is split among your children — including minor children who cannot legally manage their own inheritance.
At Olson & Reeves, we draft wills that are tailored to your actual family situation, not pulled from a template. We address issues like contingent beneficiaries, specific bequests, guardian nominations for minor children, and trust provisions for beneficiaries who are not ready to manage an outright inheritance.

A trust is a legal arrangement in which a trustee holds and manages property for the benefit of named beneficiaries. Trusts are one of the most effective tools for avoiding probate, protecting assets, and maintaining control over how and when your beneficiaries receive their inheritance.
Revocable Living Trusts
A revocable living trust is the most common type of trust used in estate planning. During your lifetime, you serve as both the trustee and the beneficiary — meaning you maintain full control over the assets in the trust. You can add or remove property, change beneficiaries, or revoke the trust entirely at any time. When you pass away, the assets held in the trust transfer directly to your named beneficiaries without going through probate. This saves your family time and money, and it also keeps the details of your estate private — unlike probate, which is a matter of public record.
A critical point that many people miss: a revocable living trust only avoids probate for the assets that have been funded into the trust. If you create a trust but never transfer your house, bank accounts, or other property into it, those assets will still go through probate. Proper funding of the trust is just as important as drafting it.
Irrevocable Trusts
An irrevocable trust, once established, generally cannot be changed or revoked by the grantor. Because the grantor gives up ownership and control of the assets, those assets are no longer considered part of the grantor’s estate for Medicaid eligibility purposes — provided the transfer occurred outside the 60-month look-back period. Irrevocable trusts are a key component of Medicaid planning and long-term care asset protection strategies. They require careful planning and should be established well in advance of any anticipated need for nursing home care.
Our estate planning attorneys at Olson & Reeves will walk you through the differences between these trust structures, explain the tax implications, and help you determine which type — or combination — is right for your family’s situation.

A Property Power of Attorney (also called a Statutory Short Form Power of Attorney for Property) allows you to designate an agent to manage your financial affairs if you become incapacitated. This includes paying bills, managing bank accounts, handling real estate transactions, filing tax returns, and making investment decisions on your behalf.
Under the Illinois Power of Attorney Act, 755 ILCS 45/, a power of attorney for property must be signed by the principal and witnessed by one witness (the witness cannot be the agent). It must also be notarized.
Without a Property Power of Attorney, if you become mentally incapacitated, your family may need to go to court and establish a guardianship just to access your bank accounts or pay your mortgage. Guardianship proceedings are expensive, time-consuming, and entirely avoidable with a properly executed power of attorney. This is one of the least expensive documents you can have prepared, and one of the most important.

A Healthcare Power of Attorney allows you to designate an agent to make medical decisions for you if you are unable to communicate your own wishes. This includes decisions about treatment options, surgical procedures, medication, and end-of-life care.
Under 755 ILCS 45/4-1 et seq., the Healthcare Power of Attorney for Illinois requires the signature of the principal and one witness. Your agent under a Healthcare Power of Attorney can consent to, refuse, or withdraw consent to any type of health care on your behalf.
Families who do not have this document in place face agonizing situations when a loved one is hospitalized and cannot communicate. Hospitals will not take direction from a family member who has no legal authority to act. A Healthcare Power of Attorney eliminates that problem and ensures that someone you trust — not a court-appointed stranger — is making those decisions.

In Illinois, probate is required when a deceased person owned assets solely in their own name that do not have a designated beneficiary, a transfer-on-death designation, or some other mechanism for automatic transfer. The most common asset that triggers probate is real estate titled solely in the decedent’s name.
Assets that generally do not require probate include: life insurance proceeds payable to a named beneficiary, retirement accounts (IRAs, 401(k)s) with designated beneficiaries, bank accounts with payable-on-death (POD) designations, property held in joint tenancy with right of survivorship, assets held in a trust, and real property subject to a valid Transfer on Death Instrument (TODI).
If everything you own falls into one of those categories, your family may be able to settle your estate without ever setting foot in a courtroom. The key is planning in advance to make sure your assets are structured properly.

Illinois law allows heirs to collect a decedent’s personal property without opening a formal probate case, provided the estate qualifies as a “small estate.” Under 755 ILCS 5/25-1, as amended by Public Act 104-0346 effective August 15, 2025, the small estate affidavit threshold has been increased from $100,000 to $150,000 in personal property.
Additionally, motor vehicles registered with the Illinois Secretary of State are now excluded from the $150,000 calculation. This is a significant change. Under the prior law, the value of a vehicle or two could easily push an otherwise small estate over the threshold, forcing families into probate unnecessarily.
To use a small estate affidavit, the following conditions must be met: the gross value of the decedent’s personal property (excluding vehicles) must not exceed $150,000; no letters of office have been issued and no petition for letters is pending; and the decedent did not own real estate in their own name (unless it passed outside of probate by TODI, joint tenancy, or trust). The affiant signs the affidavit under oath, promising to pay the decedent’s debts before distributing any assets to beneficiaries. At least 30 days must have passed since the decedent’s death before the affidavit can be used.
A small estate affidavit is a powerful tool, but it is not without risk. The person who signs it takes on personal responsibility for the estate’s debts. If creditors surface later, or if the estate’s value was underestimated, the affiant can be held personally liable. We recommend consulting with an attorney before signing one.

A Transfer on Death Instrument (TODI) is one of the most effective and underutilized probate-avoidance tools in Illinois. Under the Real Property Transfer on Death Instrument Act, 755 ILCS 27/1 et seq., a property owner can execute a TODI naming one or more beneficiaries to receive the property upon the owner’s death — bypassing probate entirely.
Originally enacted in 2012 and limited to residential real estate, the Act was expanded by Public Act 102-0068 (effective January 1, 2022) to cover all real property in Illinois, including commercial buildings, vacant land, and multi-unit properties.
Key features of a TODI include:

• Full control during lifetime. The owner retains complete ownership and control. They can sell, mortgage, lease, or use the property freely without the beneficiary’s knowledge or consent.
• Always revocable. A TODI can be revoked at any time by recording a revocation instrument or a subsequent TODI. Even language in the TODI itself attempting to make it irrevocable is void.
• Must be recorded before death. An unrecorded TODI has no legal effect.
• Beneficiary must accept within two years. After the owner’s death, the beneficiary (or their representative) must record a Notice of Death Affidavit and Acceptance within two years, or the TODI is void.
• Two witnesses and notarization required. A TODI must be signed by the owner, attested by two witnesses, and notarized.

A TODI is not the right tool for every situation. If you have a complex estate, multiple properties, or Medicaid planning concerns, a trust may be more appropriate. But for many Southern Illinois families whose primary asset is their home, a TODI is a simple, effective, and inexpensive way to keep that property out of probate.

A life estate deed is another tool for transferring real property outside of probate. In a life estate, the property owner (the “life tenant”) transfers ownership to a beneficiary (the “remainderman”) while retaining the right to live in and use the property for the rest of their life. When the life tenant dies, the property automatically passes to the remainderman without probate.
Life estates have some advantages — particularly in Medicaid planning, where the transfer may start the five-year look-back clock — but they also come with significant drawbacks. The life tenant cannot sell or mortgage the property without the remainderman’s consent. If the remainderman has creditors, a lien, or a divorce, the property can be affected. And if the life tenant needs to move into a nursing home, the property can become difficult to manage or sell.
For these reasons, we generally recommend evaluating a life estate alongside a TODI and a trust to determine which tool gives the client the best combination of control, flexibility, and protection.

Long-term care is expensive, and the costs are rising. In Southern Illinois, the average private-pay rate for a semi-private room in a nursing home can exceed $7,000 to $9,000 per month. That is $84,000 to $108,000 per year — and that number does not account for specialized care needs or inflation.
Most people do not have long-term care insurance. Medicare does not cover extended nursing home stays beyond a limited rehabilitative period. And without planning, the cost of a nursing home can consume an entire family’s savings, home equity, and retirement accounts in a matter of years.
That is why Medicaid planning is one of the most important conversations a family can have with an estate planning attorney — and it needs to happen well before a crisis.

If you’re researching Medicaid look-back period Illinois asset protection, here is what you need to know.
Illinois has a 60-month (5-year) Medicaid look-back period. When a person applies for Nursing Home Medicaid or a Home and Community Based Services (HCBS) waiver, the state will examine every financial transaction the applicant (and their spouse) made during the 60 months immediately preceding the application date. Any assets that were gifted or sold for less than fair market value during that window are treated as disqualifying transfers, and the applicant will be hit with a penalty period of Medicaid ineligibility.
The penalty period is calculated by dividing the total value of disqualifying transfers by the state’s average monthly private-pay nursing home cost (approximately $8,500–$9,000 per month in 2026). For example, if you gifted $90,000 to your children within the look-back period, you could face approximately 10 months of Medicaid ineligibility — meaning you or your family would need to pay privately for nursing home care during that time.
There are important exceptions. Transfers between spouses are not penalized. Transferring a home to a blind or disabled child, or to a caregiver child who resided in the home for at least two years prior to the applicant’s institutionalization, is also exempt. Additionally, the home itself is generally an exempt asset for Medicaid eligibility purposes if the applicant intends to return home or if a spouse or dependent still resides there — provided the home equity does not exceed $752,000 (2026 limit).
The key takeaway: Medicaid planning must begin years before care is needed. If you wait until a family member is already in a nursing home, your options are severely limited.

Effective Medicaid planning is not about hiding assets or gaming the system. It is about using the legal tools that Illinois law provides — in advance — to protect what you have worked your entire life to build.
Common strategies include establishing irrevocable trusts outside the look-back window, converting countable assets into exempt assets (such as prepaying funeral expenses through an irrevocable funeral trust or making home improvements), using Medicaid-compliant annuities, and structuring caregiver agreements with family members. Each of these tools has specific legal requirements, and getting the details wrong can trigger penalties or even fraud allegations.
At Olson & Reeves, we work with families to develop Medicaid planning strategies that are both legally sound and tailored to their specific financial picture. We will tell you honestly what can be protected, what cannot, and how far in advance you need to act. If you are concerned about the cost of long-term care and what it could do to your family’s finances, this conversation should happen now — not in a hospital hallway.

The cost of probate in Southern Illinois varies depending on the size and complexity of the estate, but families should generally expect to spend between $3,000 and $10,000 or more in combined court costs, attorney fees, executor fees, and publication costs. Contested estates or estates involving real property, disputes among heirs, or creditor claims can cost significantly more and take 12 to 18 months or longer to resolve.
Illinois probate courts charge filing fees for opening an estate, and there are additional costs for certified copies, legal notices required to be published in local newspapers, and the preparation and filing of inventories, accountings, and final reports. Attorney fees in Illinois probate cases are typically charged on an hourly basis, though some attorneys offer flat-fee arrangements for simpler estates. The executor is also entitled to reasonable compensation, which is set by the court.
The most effective way to minimize probate costs is to plan in advance. Revocable trusts, TODIs, beneficiary designations, and joint ownership structures can all reduce or eliminate the assets that pass through probate.

If you die without a will in Illinois, your estate is distributed according to the state’s intestacy laws under 755 ILCS 5/2-1. If you have a surviving spouse and children, your spouse receives only one-half of your estate, and the other half is divided equally among your children. If you have a spouse but no children, your spouse receives everything. If you have children but no spouse, the children split the estate equally. If you have no surviving spouse or descendants, the estate passes to your parents, then siblings, and so on down the line.
One of the most surprising consequences of dying without a will in Illinois is the spousal share. Many married people assume their husband or wife will inherit everything. That is only true if there are no living descendants. If there are children — even minor children — they are entitled to half. This can create serious practical problems, particularly when the primary asset is a home. A surviving spouse may be forced to sell the family home to satisfy the children’s share, or a court-supervised guardianship estate may need to be opened for minor children’s inherited assets.

As of August 15, 2025, the Illinois small estate affidavit limit is $150,000 in personal property, up from the previous limit of $100,000. Under Public Act 104-0346, motor vehicles registered with the Illinois Secretary of State are now excluded from this calculation. This means a family can use a small estate affidavit even if the decedent owned one or more vehicles, as long as the remaining personal property (bank accounts, investments, and other personal property) does not exceed $150,000. See 755 ILCS 5/25-1.
Keep in mind that a small estate affidavit cannot be used if the decedent owned real property in their own name. Real estate requires either probate or a separate transfer mechanism such as a TODI or trust. The affidavit also cannot be used if a probate case has already been opened.

A TODI avoids probate for the specific real property covered by the instrument. When the property owner dies, the named beneficiary receives the property directly upon recording a Notice of Death Affidavit and Acceptance — no probate required for that asset. However, a TODI only covers real property. If the decedent also has bank accounts, vehicles, personal property, or other assets that are not covered by beneficiary designations, joint ownership, or a trust, those assets may still need to go through probate.
A TODI is one piece of a comprehensive estate plan, not a substitute for one. We typically recommend a TODI as part of a broader strategy that includes a will, powers of attorney, and potentially a trust — all working together to cover every asset in the estate.

The primary difference is control. With a TODI, the property owner retains complete ownership and control during their lifetime. They can sell, mortgage, or revoke the TODI at any time without the beneficiary’s knowledge or consent. With a life estate, the owner transfers a remainder interest to the beneficiary immediately upon recording. The owner retains the right to live in and use the property, but they cannot sell or mortgage it without the remainderman’s consent, and the remainderman’s creditors can attach to the remainder interest during the owner’s lifetime.
For most clients, the TODI offers superior flexibility. Life estates may still be appropriate in specific Medicaid planning scenarios, but we always evaluate the tradeoffs carefully before recommending one.

No. A will does not avoid probate — it is a set of instructions to the probate court. When you die with a will, the will must be filed with the circuit clerk in the county where you resided, and a probate case must be opened to validate the will and authorize the executor to act. The probate process still involves court filings, notice to heirs and creditors, potential hearings, and the time and costs associated with court supervision.
If your goal is to avoid probate, you need additional tools beyond a will — such as a revocable trust, beneficiary designations, joint ownership arrangements, or Transfer on Death Instruments. A will remains important as a backstop (what lawyers sometimes call a “pour-over” will when used in conjunction with a trust), but by itself, it does not keep your estate out of court.

Because they cover completely different decisions. A Property Power of Attorney authorizes your agent to manage your financial affairs — paying bills, handling bank accounts, managing investments, filing taxes, and conducting real estate transactions. A Healthcare Power of Attorney authorizes your agent to make medical decisions — consenting to or refusing treatment, choosing providers, and making end-of-life care decisions. Illinois treats these as separate instruments under the Illinois Power of Attorney Act (755 ILCS 45/), and you need both to be fully covered in the event of incapacity.
Without a Property Power of Attorney, your family may need to petition the court for a guardianship of the estate — a time-consuming and expensive process — just to pay your mortgage or access your bank account while you’re incapacitated. Without a Healthcare Power of Attorney, the hospital has no legal direction from you about who should make your medical decisions, which can lead to confusion, delay, and family conflict at the worst possible time.

Ideally, Medicaid planning should begin at least five years before you anticipate needing long-term care. This is because Illinois enforces a 60-month (5-year) look-back period for Nursing Home Medicaid and HCBS waiver applications. Any assets transferred for less than fair market value during those 60 months can trigger a penalty period of Medicaid ineligibility. Transfers made before the look-back window are not penalized.
The reality is that most people do not start planning until a health crisis forces the conversation. At that point, options are limited. If you are in your 50s or 60s and in good health, now is the time to start thinking about how to protect your assets from the cost of long-term care. The earlier you plan, the more tools are available to you, and the more of your estate you can protect for your family.

The nursing home itself cannot take your house. However, the State of Illinois can seek to recover Medicaid benefits paid on your behalf from your estate after you pass — including the value of your home — through a process called Medicaid estate recovery. While your home is generally an exempt asset for Medicaid eligibility purposes during your lifetime (as long as your equity does not exceed $752,000 and you or your spouse intend to return or still reside there), it can become subject to a state claim after your death.
This is one of the primary reasons families engage in Medicaid planning. Tools like irrevocable trusts, life estate deeds, and TODIs — when properly structured and executed outside the look-back period — can help protect the family home from estate recovery. But timing is everything. If you wait until your spouse or parent is already in a facility, the window for these strategies may have closed.