Racing to the Top Instead of the Bottom in Illinois Estate Law

In the last two decades, competition for trust business has led states to abolish the Rule Against Perpetuities, authorize trust decanting, and permit self-settled asset protection trusts all in the hope that settlors will bring their trusts (and the fees they generate) within a state's jurisdiction. But this legislation is profoundly inequitable because it primarily benefits wealthy settlors and those lucky enough to be their beneficiaries, while shifting cost and risk to everyone else. In the face of such competition, Illinois has fought to retain its trust business by passing legislation that allows settlors to opt out of the perpetuity period and permit trust decanting. But Illinois has not shown the same interest in legislating for those who do not engage in estate planning or who use more low-brow methods than irrevocable trusts.

These people would benefit from Illinois authorizing holographic wills, reforming its requirements for transfer-on-death deeds, and comprehensively revisiting its intestacy statutes. An examination of what Illinois has done in the area of trusts and what it has not done elsewhere highlights the unfairness in what are often described as advances in trust law and elevates the state law reforms that hold the greatest appeal for ordinary decedents. It also suggests that policy makers should have the same appetite for risk and costs when legislating for ordinary estates as they do when legislating for extraordinary estates.