Why Your Spouse May Not Be the Best Trustee for Your Oak Brook, IL Living Trust

Estimated reading time: 11 minutes

If you live in Oak Brook, Naperville, or Downers Grove and you have a Revocable Living Trust, there is one decision that rarely gets the attention it deserves: whether naming your spouse as trustee is actually the right move. On the surface, it makes complete sense, you trust them and they know your family. But in our office, we regularly see how this well-meaning choice can create the exact conflict and heartbreak you were trying to avoid.

This article will walk you through why your spouse, despite being the most natural choice, may not always be the best trustee for your Illinois living trust, and who to consider instead. If you’re already working with an attorney on your plan, think of this as a second opinion on one of the most consequential decisions in your estate plan.

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What Does a Trustee Actually Do in Illinois?

Before you decide who should serve, it helps to understand what the job actually requires. Under the Illinois Trust Code (760 ILCS 3/), a trustee accepts serious and legally enforceable obligations the moment they step into the role. These include:

• Duty of loyalty — The trustee must act solely for the benefit of the trust’s beneficiaries, not for their own personal gain. (760 ILCS 3/802)
• Duty of impartiality — If the trust has more than one beneficiary, the trustee must treat them all fairly, giving due regard to each person’s interests. (760 ILCS 3/803)
• Prudent investor standard — The trustee must manage trust investments with ‘reasonable care, skill, and caution,’ considering the portfolio as a whole and the beneficiaries’ needs for both income and long-term growth. (760 ILCS 3/901)
• Duty to inform and account — Illinois law requires the trustee to keep accurate records and provide formal accountings to qualified beneficiaries. (760 ILCS 3/813.1)
• Duty of prudent administration — A trustee must administer the trust as ‘a prudent person would’ — not simply how a grieving family member would. (760 ILCS 3/804)

These are legal duties, not suggestions. A trustee who fails to meet them can be removed by a court, held personally liable for losses to the estate, or ordered to pay damages to the beneficiaries. That is a heavy burden to place on someone you love without a full and honest conversation first. If you are still building your plan, learn more about what a properly structured estate plan in Oak Brook can do to protect your family.

Why Most People Name Their Spouse and Why That Instinct Is Not Always Right

The Emotional Reality of Grief

When you pass away, your spouse will be grieving. They will be managing the household, parenting your children, coordinating your finances, and carrying an enormous emotional weight. On top of all of that, as your successor trustee, they will be legally required to:

• Inventory and value all trust assets
• Notify qualified beneficiaries under Illinois law
• File annual accountings
• Manage and invest trust assets prudently
• Make distributions in strict accordance with the trust’s terms
• Maintain detailed records — and be prepared to defend every decision in court if challenged

Grief and fiduciary duty are a difficult combination. For many spouses — particularly those who were not the primary financial manager in the marriage — this combination is overwhelming and, frankly, unfair. The pressure alone can lead to costly mistakes, delayed distributions, and strained relationships with your children and other beneficiaries.

The Conflict of Interest Problem

Here is where things get legally complicated, especially in Illinois. In most trusts, the surviving spouse is both a beneficiary and a trustee. As beneficiary, they have a personal interest in receiving as much of the trust as possible. As trustee, they have a legal duty to act impartially for all beneficiaries, including your children, grandchildren, or anyone else named in the trust.

Those two roles are in direct tension. Under 760 ILCS 3/803, the trustee must act impartially among beneficiaries. But a surviving spouse who controls distributions may, consciously or not, favor their own financial needs over those of the remainder beneficiaries. When those remainder beneficiaries are your children from a prior relationship, the potential for conflict increases significantly.

Blended Families and Prior Relationships

This is one of the most common situations we handle in our Oakbrook Terrace office. A spouse who becomes sole trustee has significant discretion over how and when trust distributions are made. If your children are from a prior marriage, they may feel that your surviving spouse is managing the trust to benefit themselves at the expense of the family you originally built.

That suspicion, whether or not it is accurate, can fracture families. It can also end up in front of a DuPage County Circuit Court judge – exactly what a well-drafted estate plan is supposed to prevent. These kinds of conflicts are one reason why family law and estate planning are best handled together, and why FWLLS addresses both under the same roof.

Can My Spouse Be Trustee of My Living Trust in Illinois?

Yes — your spouse can serve as trustee of your Illinois living trust. There is no legal prohibition, and for many couples with straightforward estates, it works perfectly well. The question is whether your spouse should be the sole trustee, and whether they are the best choice given your estate’s structure, your family dynamics, and the complexity of your assets.

For families where:

• The estate is relatively simple
• Assets pass largely to a surviving spouse with no children from a prior relationship
• The spouse is financially capable and emotionally prepared for the role

…naming your spouse as successor trustee is often a reasonable decision. But for families in Oak Brook, Naperville, and Downers Grove with high-value homes, investment portfolios, blended families, or minor children, the stakes of a poorly considered trustee choice are too high to leave to assumption. This is one of the most overlooked decisions in the entire estate planning process — and one of the most consequential.

What to Consider When Naming a Trustee in DuPage County

Consider a Professional or Corporate Trustee

For high-value estates or families with complex dynamics, a professional trustee — such as a bank trust department or independent corporate fiduciary — brings:

• Financial expertise and professional fiduciary experience
• No personal stake in the trust’s outcome
• Accountability and errors-and-omissions coverage against mistakes
• Continuity — they will not predecease your beneficiaries or become incapacitated

The trade-off is cost: professional trustees typically charge a percentage of trust assets annually. For many Oak Brook-area families with significant real estate or investment holdings, this fee is modest compared to the litigation risk of a conflicted or unprepared trustee.

Name a Trusted Adult Child or Advisor

If you have an adult child with sound judgment, financial literacy, and the trust of your entire family, naming that child as trustee can work well. The key is to be deliberate and to address potential conflicts explicitly in the trust document itself. A well-drafted trust can include clear distribution standards and checks on discretion that reduce the risk of family disputes. If you are ready to think through your options, book a free 15-minute call and we will help you identify the right structure for your family.

Common Trustee Mistakes DuPage County Families Make

• Assuming the surviving spouse ‘knows what to do.’ Without clear instructions and a properly drafted trust, good intentions are not enough. Illinois trustees face real legal obligations they may not be aware of until it is too late.
• Naming a spouse without telling them. The person you name should know they’ve been named — and should have at least a basic understanding of what the role involves. Discovering the obligation after a death is one of the most stressful moments in trust administration.
• Not updating the trustee designation after divorce. Under Illinois law (760 ILCS 3/606), provisions in a revocable trust in favor of a former spouse are automatically revoked upon dissolution of the marriage. But the trustee designation itself may still need to be explicitly updated depending on how the trust is drafted.
• Choosing based on love, not capability. The right trustee is the person best equipped to carry out the trust’s purpose — fairly, accurately, and under pressure. Love is necessary, but it is not sufficient. The two are not mutually exclusive, but capability must come first.
• Naming only one level of successor. What happens if your spouse and primary successor both predecease you — or become incapacitated simultaneously? A well-drafted trust should name multiple levels of successor trustees to prevent a gap in administration.

Frequently Asked Questions: Trustee Selection in Oak Brook, IL

Take the Next Step: Get Your Trustee Decision Right

Choosing the right trustee is one of the most consequential — and most overlooked — decisions in your entire estate plan. If you are not certain your current choice is the right one, or if you are starting a new plan and want to think this through with an attorney who understands both the legal requirements and the family dynamics, we are here to help.

Mention this article when you call and ask about our Family Wealth & Legacy Strategy Session™ — a dedicated planning conversation designed to help you understand your options, identify gaps, and build a plan that actually protects the people you love. You can book a free 15-minute introductory call at fwlls.com/book-a-call or call us directly at (630) 233-4223.

About Oak Brook Estate Planning Attorney Michael Biederstadt

Michael Biederstadt founded Family, Wealth & Legacy Legal Solutions with one mission: to keep DuPage County families out of court and out of conflict—and to protect them from life’s most common legal problems: death, disability, and divorce.

Michael’s approach is unique because he addresses the intersection of estate planning and family law, ensuring that a client’s legal strategy protects both their assets and their family dynamics. For nearly two decades of practice in the Chicagoland area—beginning in 2007 and expanding through his firm FWLLS, founded in 2023—he has seen firsthand how a lack of integrated planning can unravel even the best intentions.

At FWLLS, Michael leads a comprehensive four-meeting planning process that puts education first. This ensures clients make informed decisions today while benefiting from ongoing three-year review meetings to keep their plans current as their lives evolve. FWLLS works alongside each client’s financial and tax advisors to build a coordinated strategy, not just a set of documents.

FWLLS is located at 17W635 Butterfield Road, Suite 318, in Oakbrook Terrace, serving families throughout Oak Brook, Naperville, Downers Grove, and all of DuPage County. To start the conversation, book a free 15-minute introductory call at fwlls.com/book-a-call or call (630) 233-4223.

If you’re interested in learning more, feel free to check out a few of our prior articles focusing on asset protection:

• Estate Planning After a Divorce: Why It’s Critical to Review Your Plan
• A Guide to Protecting Your Assets Against Lawsuits and Creditors
• Protecting Your Child’s Inheritance With a Lifetime Asset Protection Trust

If you found this article helpful, please share it with a friend or neighbor in Oak Brook, Naperville, or the surrounding DuPage County area who may be asking the same questions.

This article is a service of Family, Wealth & Legacy Legal Solutions (FWLLS). At FWLLS, we do not just draft documents — we ensure you make educated, informed, and empowered decisions for yourself and the people you love.