Providing Peace Of Mind

No Estate Plan? Illinois Has One For You… and You May Not Like It

by | Jul 23, 2024 | Firm News

Do you want Illinois law to dictate where your assets go upon your death?  And do you really want to pay more legal fees, court costs and other expenses than necessary?  Do you want your loved ones fighting each other over who will be in charge of administering your estate and have a judge making decisions for your family?  If you answered NO to any or all of these questions, you need to take action now.

The Illinois Probate Act provides that, if an individual dies without a valid Will (i.e., he/she died “intestate”), any assets held in that individual’s own name (“probate assets”) will pass according to the intestacy provisions of the Probate Act.  Following are some examples to illustrate how this would work.

Example 1:  Gary (the “decedent”) was married and had two minor children, ages 8 and 11.  His probate assets would be distributed one-half to his spouse, Judy, and one-half to his two young children in equal shares.  In addition to opening a probate estate to administer Gary’s estate, Judy will also need to petition the probate court to be appointed as guardian of the estate for their own children to hold their shares of Gary’s probate assets until they are 18.  Judy will need to file an annual accounting with the guardianship court and ask the judge for permission to use any of those assets for the benefit of the child each year until they reach age 18.  When each child turns 18, whatever is left of their share will be handed over to them to do whatever they want with it.  Had Gary executed a will and created a revocable living trust, and properly titled his assets and designated trusts as beneficiary where appropriate, all of this could have been avoided, and Judy would have access to all of their assets and be able to take care of herself and their children without the cost and hassle of court involvement in their lives.

Example 2:  The decedent, Jennifer, was unmarried and had no children or living siblings, but had twelve nieces and nephews.  She is very close with one of her nephews, George, because he visits her several times each week and drives her everywhere.  Jennifer has had no contact with three of her nieces in the past ten years.  She sees her other eight nieces and nephews occasionally and would have liked to leave each of them a small share of her estate.  Jennifer had shared with George that she wanted to leave him one-half of her estate and that she wanted the other one-half to be divided equally among her eight nieces and nephews who she sees for birthdays and holidays.  However, because Jennifer did not have a valid will stating her wishes, her probate assets would instead pass in equal shares among all twelve nieces and nephews, including those she hasn’t seen in many years.

Example 3:  Steve was widowed and had three adult children, one of whom, Stacey, is a disabled adult relying on governmental benefits to survive.  Steve’s estate will be distributed in equal shares to his three children.  However, Stacey will most likely lose her benefits and have to spend all of her inheritance before becoming eligible for benefits once again.  With proper estate planning, it would have been possible for Steve to provide that Stacey’s share would be held in a certain type of trust, managed by someone of his choosing, so that those assets could be available to pay for things that are not covered by the governmental benefits and could make Stacey’s life more enjoyable.

In each of these examples, a family member will need to open an intestate probate estate in the county where the decedent resided.  If more than one person with equal or priority standing (determined by Illinois law) to represent the estate both want to administer the estate, there will be additional court costs to argue in probate court why each feels they should be appointed over the other.  The probate judge will decide.  The appointed administrator would be required to purchase a surety bond (like an insurance policy) to protect the estate assets.  And even after the added costs, family fighting, and judicial involvement, the results are not even what the decedent would have wanted.

All of this could have been avoided in each case had the decedent executed a properly drafted and valid will, at minimum, or better yet, also created and funded a revocable living trust. Don’t let Illinois law dictate where your assets go upon your death. Avoid unnecessary legal fees, court costs, and family disputes. Ensure your loved ones are taken care of according to your wishes, not a judge’s decision.

Contact Kelleher + Holland, LLC now to schedule a consultation and let us help you create a comprehensive estate plan that protects your family and preserves your legacy.

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