Illinois Living Trust
The Illinois rules that shape the document: the Johnson v. La Grange spousal elective-share exclusion, the 760 ILCS 3/402 no-witness execution rule, and the Article 14 qualified perpetual trust opt-out.
Find out where you stand in Illinois
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Introduction
A living trust moves your assets to a trustee during your lifetime so whatever you actually retitle into it can pass to your beneficiaries without Illinois probate; anything left titled in your own name still goes through probate no matter what the trust document says. Illinois's sharpest distinguishing fact sits in spousal rights: Illinois never adopted a UPC-style augmented estate, so the 755 ILCS 5/2-8 spousal renunciation share (1/3 of the estate with descendants, 1/2 without) is measured only against your probate estate, and the Illinois Supreme Court held in Johnson v. La Grange State Bank (1978) that funding an ordinary revocable trust during life lawfully moves assets outside that share unless the transfer was colorable or illusory. Illinois also imposes no notary or witness requirement to create the trust itself (760 ILCS 3/402), the reverse of an Illinois will, which needs two witnesses (755 ILCS 5/4-3(a)).
Key Things to Know
- 1
Illinois's sharpest planning fact: because Illinois never adopted a UPC-style augmented estate, the surviving spouse's renunciation share under 755 ILCS 5/2-8 (1/3 with descendants, 1/2 without) is computed only against the probate estate. The Illinois Supreme Court held in Johnson v. La Grange State Bank, 73 Ill. 2d 342 (1978), that assets validly funded into a revocable trust before death fall outside that share unless the transfer was colorable or illusory.
- 2
No notary or witness is required to create an Illinois living trust. 760 ILCS 3/402 requires only settlor capacity, indicated intent, a definite beneficiary, and a trustee with duties to perform, and 760 ILCS 3/407 will even enforce a purely oral trust on clear and convincing evidence. This is the reverse of an Illinois will, which needs the testator's signature attested by 2 credible witnesses (755 ILCS 5/4-3(a)).
- 3
Funding Illinois real estate into the trust requires a written instrument of conveyance (760 ILCS 3/115); the deed must be acknowledged before a notary or other authorized officer to be recorded (765 ILCS 5/20) and is recorded with the County Recorder. A deed with actual consideration under a fixed $100 threshold, not adjusted for inflation, is exempt from the state Real Estate Transfer Tax (35 ILCS 200/31-45(e)), though Chicago and other home-rule municipalities impose their own separate transfer taxes not covered by that exemption.
- 4
Illinois's homestead exemption is a fixed $50,000 of an individual's equity, not indexed for inflation, or a proportionate share of $100,000 for two or more owners, effective January 1, 2026 (735 ILCS 5/12-901, P.A. 104-120), a sharp increase over the prior, much lower amount. Whether that exemption survives once the residence is deeded into a revocable trust is not resolved by any Illinois statute or reported case; ask an Illinois attorney before relying on it after that transfer.
- 5
Illinois is not a community property state. It classifies property acquired during marriage as equitable-distribution 'marital property' under 750 ILCS 5/503(a), a different scheme entirely. The Trust Code's own 'community property' definition (760 ILCS 3/103(8)) only preserves the character of assets that were already community property under another state's law before a couple moved to Illinois.
- 6
Illinois did not adopt USRAP's flat 90-year rule against perpetuities. Article 14 (760 ILCS 3/1401-1407) keeps a traditional rule terminating an offending interest 21 years after the death of the last beneficiary living when the trust began (1405(a)), but a trust drafted on or after January 1, 1998 to state the rule does not apply, and that does not limit the trustee's power to sell trust property, qualifies as a 'qualified perpetual trust' exempt from the rule entirely (1403(c), 1404(a)(8)).
- 7
Illinois imposes its own estate tax with a cliff-style, fixed $4,000,000 exclusion, not indexed for inflation, that has been unchanged since 2013 through 2026 (35 ILCS 405/2(b)(iii)), taxed from the first dollar once the estate exceeds it, with no portability of a spouse's unused exclusion; Illinois has no inheritance tax (repealed for deaths after January 1, 1983). A revocable trust gives no protection from the settlor's own creditors during life (760 ILCS 3/505(a)(1)), and Illinois has no self-settled asset-protection-trust statute (505(a)(2)).
Key decisions before you file
Before you file a Living Trust in Illinois, a few decisions shape the document: which option to choose and what each one means. The Living Trust guide walks through them.
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Illinois Requirements for Living Trust
Illinois No Augmented Estate: Funding Defeats the Spousal Elective Share
755 ILCS 5/2-8's spousal renunciation share (1/3 of the estate with descendants, 1/2 without) is computed only against the probate estate. The Illinois Supreme Court held in Johnson v. La Grange State Bank, 73 Ill. 2d 342 (1978), that assets validly funded into a revocable trust before death fall outside that share unless the transfer was colorable or illusory.
Illinois Execution: No Notary or Witness Required to Create the Trust
760 ILCS 3/402 requires only settlor capacity, indicated intent, a definite beneficiary, and a trustee with duties to perform. 760 ILCS 3/407 will even enforce a purely oral trust on clear and convincing evidence, unlike an Illinois will, which needs 2 attesting witnesses (755 ILCS 5/4-3(a)).
Illinois Funding Deed: Notary Acknowledgment to Record, County Recorder
A deed conveying Illinois real property to the trustee must be acknowledged before a notary public or other authorized officer to be recordable (765 ILCS 5/20) and is recorded with the County Recorder in the county where the property lies. A deed with actual consideration under a fixed $100 threshold, not adjusted for inflation, is exempt from the state transfer tax (35 ILCS 200/31-45(e)), though home-rule municipalities such as Chicago impose their own separate transfer taxes.
Illinois Homestead Exemption Raised to $50,000 / $100,000 (Jan 1, 2026)
735 ILCS 5/12-901 now exempts a fixed $50,000 of an individual's equity, not indexed for inflation, or a proportionate share of $100,000 for two or more owners, effective January 1, 2026 (P.A. 104-120), a sharp increase over the prior, much lower amount. Whether the exemption survives a deed into a revocable trust is not resolved by Illinois statute or case law.
Illinois Certificate of Trust Must Disclose the Trust's Taxpayer ID Number
760 ILCS 3/1013 lets the trustee furnish a certification of trust in place of the full instrument, but 1013(a)(7) requires it to disclose the trust's taxpayer identification number, an item the uniform UTC certification does not require. A third party may require the certification to be acknowledged (1013(b)).
Illinois Qualified Perpetual Trust Opt-Out
Article 14 (760 ILCS 3/1401-1407) keeps Illinois's traditional perpetuities rule rather than USRAP's flat 90-year period, but a trust drafted on or after January 1, 1998 to state the rule against perpetuities does not apply, and that does not limit the trustee's power to sell trust property, qualifies as a perpetual trust (1403(c), 1404(a)(8)).
Illinois No Self-Settled Asset Protection Trust
760 ILCS 3/505(a)(1)-(2) subjects both revocable and irrevocable trust assets to the settlor's own creditors to the extent of the settlor's retained benefit. Illinois has no domestic asset-protection-trust statute, so neither trust form shields a settlor's own assets from the settlor's own creditors.