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If you are a resident of Illinois and you die without a Will then Illinois Law controls who inherits the “Probate Assets” of your Estate. This is referred to as the “Illinois Estate Plan” because you are relying on Illinois law to determine who receives your “Probate Assets”.
What are Probate Assets?
Probate Assets are Assets that DO NOT automatically or easily transfer upon someone’s passing because:
The Asset is owned individually (not jointly with anyone else); and
The Asset DOES NOT have beneficiary designations
For example, a bank account that John Smith owns individually with no beneficiary designation on that account would be considered a Probate Asset. Upon John’s passing – we have to look at his Will, and if none, then Illinois Law to see who inherits his Probate Assets.
A Will is a document you sign in front of at least two witnesses. This document says who receives your Probate Assets upon your passing. Who inherits John Smith’s Probate Assets if he doesn’t have a Will? The Answer — Illinois Law . . .
Your Illinois "Heirs at Law"
If someone dies without a Will in Illinois – then Illinois Law has a hierarchy of who will inherit the Probate Assets of your Estate.
The Illinois Hierarchy – or your “Heirs” according to the laws of Illinois are as follows:
Level 1: If you die with a spouse, but no descendants – then everything to your surviving spouse.
Level 2: If you die with no surviving spouse but have descendants – then everything to your descendants, per stirpes.
Note: “Per stirpes” means everything will be distributed equally to your children, but if any of your children have predeceased you – then your children’s descendants will inherit their share equally.
Level 3: If you have a surviving spouse and surviving spouse AND surviving children – then one-half share to your spouse and a one-half share to your children in equal shares, per stirpes.
Level 4: If you have no surviving spouse and no surviving children then – equal shares between your parents and siblings. If one parent has predeceased, then the surviving parent receives a double share. If no parents survive, then to your siblings in equal shares, per stirpes. Note that half-siblings receive part of your estate as if they were a full sibling according to Illinois Law.
Illinois keeps going down the Hierarchy Levels until your next living kindred (or “kin”) such as grandparents, uncles, aunts, nieces, nephews, etc. are found.
Level 5: Your grandparents or any descendant of your grandparents.
Level 6: Your great-grandparents or any descendant of your great-grandparents.
Level 7: If your great-grandparents or any descendant of your great-great-grandparents cannot be found, then Illinois says look for ANY KINDRED that you may have that can be found to inherit your Probate Assets
If no kindred of any kind of yours is found, then:
Level 8: Your Real Estate will escheat (be turned over) to the County where you reside and any Personal Property of your Estate will escheat (i.e., be turned over) to the State of Illinois.
Here is a link to the Illinois Heirs at Law Statute for further reference.
Your Remote Contingent Beneficiary:
In order to avoid having the Probate Assets of your estate distributed to your “Heirs at Law” – you need to have a properly drafted and signed Will.
BUT – what happens if – in the very remote chance – that all the people named in your Will predecease you or die at the same time as you? Think of the scenario where all of your family – kids, grandchildren, parents, etc. all flying in the same plane and the plane crashes. If that occurs – then the Illinois Heirs at Law will then take effect.
In order to prevent your Heirs at Law from inheriting in this scenario too, there is usually a section in a Will that is called the “Remote Contingent Beneficiary” Section. In this section, you name Contingent Beneficiaries if – in the very REMOTE chance – all of your primary Will beneficiaries predecease you.
If all Primary Beneficiaries in your Will have predeceased you, many people are fine with the “Heirs at Law” scenario described above. However, some people still do not want their “Heirs at Law” to inherit their Probate Assets and will name friends, specific family members, and/or charity as their Remote Contingent Beneficiary.
Conclusion
Most people do not like some aspect of the Illinois Heirs at Law Rules – especially people that are married and have children (Level 3 above) and, therefore, it is important to have a properly signed Will. Even with a signed Will, it is important to name your “Primary Beneficiaries” and to take the extra step to name your “Remote Contingent Beneficiaries” in order to avoid your Probate Assets being distributed to your Illinois Heirs at Law.
At the Ritchie Law Office, Ltd., we recognize the importance of having an up-to-date Estate Plan. Call our office at (309) 662-7007 to schedule a Ritchie Legacy Planning Session today!
This article is a service of Attorney Chad A. Ritchie and the Ritchie Law Office, Ltd.
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