As Naperville wills attorneys, we often meet families who believe that creating a trust alone is enough to control every aspect of their estate. While a trust is a powerful estate planning tool, it does not automatically include all assets unless those assets are properly titled or transferred into the trust. This is where a spillover will, sometimes called a pour-over will, becomes essential. A spillover will ensures that any property not placed into the trust during a person’s lifetime “spills over” into the trust at death. Without this safeguard, those assets could pass through probate under Illinois law, potentially leading to unintended outcomes and disputes among heirs.
The Illinois Probate Act of 1975 (755 ILCS 5/1-1 et seq.) governs wills and probate matters in the state. Under this law, any property not transferred into a trust or addressed in another estate planning document must be distributed through the probate process. If a person relied on a trust but never transferred a retirement account, real estate, or vehicle title into it, those assets could be left exposed. A spillover will captures these assets and directs them back into the trust, ensuring the overall estate plan remains intact. This integration between wills and trusts is a key part of building a comprehensive estate plan in Illinois.
Trusts offer privacy and efficiency, but they only control the property that is properly titled in their name. We have seen many situations where clients establish a trust but forget to retitle certain accounts, transfer vehicles, or record deeds for real estate. Without a spillover will, those assets bypass the trust and may go through probate. Under 755 ILCS 5/4-3, a valid will must be in writing, signed, and witnessed, which makes a properly executed spillover will enforceable.
Having this document in place avoids the risk of partial intestacy—where some assets pass according to Illinois intestacy laws (755 ILCS 5/2-1) instead of following the wishes set out in the estate plan. By ensuring that leftover property is funneled into the trust, the spillover will preserves the decedent’s intent and provides continuity for the family.
Even with a spillover will, probate cannot always be avoided. Probate is required in Illinois when the estate includes assets valued at more than $100,000 or when real property is titled solely in the decedent’s name. While the spillover will directs those assets into the trust, the probate court must still oversee the transfer. This process can take months and may involve costs that could have been reduced with proper funding of the trust.
However, the probate court’s oversight provides a level of legal protection, ensuring that creditors are properly notified and claims are resolved. Once the probate process is complete, the assets flow into the trust, where the trustee distributes them according to the terms of the trust agreement.
Estate disputes often involve family conflict. While Illinois law does not contain a statute specifically labeled as “parental alienation,” behaviors that interfere with parent-child relationships can affect custody decisions under 750 ILCS 5/602.7. Similarly, estate disputes often mirror family conflicts, where one heir may feel excluded or alienated. A spillover will, combined with a well-drafted trust, helps reduce these conflicts by providing clarity and ensuring all assets are accounted for. When estate plans leave gaps, disputes are more likely, and probate courts may become the battleground for family tensions.
When advising clients, we stress several best practices:
By following these steps, families reduce the risk of litigation and ensure that their estate plan functions as intended.
A trust is a legal entity that holds property and directs its distribution. A spillover will is a document that transfers any remaining property not already in the trust into it after death. The trust manages the assets, but the will ensures no property is left outside.
Not always. If assets remain outside the trust and exceed $100,000 in value or include real estate, probate is required under Illinois law. The will directs the probate court to transfer those assets into the trust, but the court process still takes place.
Any property not titled in the trust or otherwise accounted for may pass according to intestacy laws under 755 ILCS 5/2-1. This could result in distributions that do not reflect the decedent’s wishes, such as children receiving equal shares even if the trust intended otherwise.
Yes. Like any will, a spillover will can be challenged on grounds such as lack of capacity, undue influence, or improper execution under 755 ILCS 5/4-6. Proper drafting and execution reduce the risk of successful contests.
We recommend reviewing estate planning documents every three to five years or after major life events such as marriage, divorce, the birth of a child, or significant changes in financial circumstances. Regular reviews ensure compliance with Illinois law and alignment with family goals.
Yes. Even if the estate is modest, a spillover will ensures all property is directed into the trust. This prevents intestacy and reduces the risk of disputes, particularly in families with multiple heirs.
Indirectly. Creditors may still file claims in probate, but once the assets are transferred into the trust, the trustee follows the trust terms. While this does not eliminate creditor rights, it helps streamline administration.
Yes. Digital property such as online accounts, intellectual property, or cryptocurrencies can be directed into a trust through a spillover will, provided they are identified and addressed in the estate plan.
At Keller Legal Services, we understand the importance of creating a complete estate plan that works in practice, not just on paper. A spillover will is the safety net that ensures all property is accounted for and that the intent behind the trust is honored.
Call 630-505-1515 today to receive your free consultation with our Naperville will attorney. From our office in Naperville, we represent clients throughout Chicago and across Illinois, helping families protect their legacies and avoid costly disputes.
