Naperville Estate Planning Lawyer Talks About Intestate Succession

intestate, Naperville estate planning lawyerAs an estate planning lawyer, it troubles me to know that more than half of American adults do not have any type of plan in place for the disposition of their asset upon their death—not even a will. If you are among that group, do you know what would happen to your hard-earned property if you were to die suddenly? Unfortunately, the answer is not necessarily as simple as many believe.

What Is Intestacy?

When an Illinois resident dies without having created a will, the Probate Court will allocate his or her property according to the state’s intestacy laws of the state. “Intestacy” is a legal term, which refers to the condition of property that has not been addressed in an estate plan or by any other type of legal direction. An investment account, for example, might not be considered intestate property because such accounts often require the account holder to sign a beneficiary statement.

A Complex Set of Statutes

According to Illinois intestate succession laws, who gets what depends on your family’s circumstances. If you have a spouse, but not children, your spouse will receive everything; if you have children but do not have a spouse, your children will receive all of your property. If you have both, then your spouse will receive have of your property, with the other half going to your children. This rule is different than in many other states, where the decedent’s spouse may be the sole heir to the estate. If you have no spouse and no children, then your parents and your brothers and sisters will receive equal shares. If only one parent is living, however, he or she will receive two shares. As you can see, there is no shortage of possible scenarios, and the situation can quickly become extremely complicated.

In addition to your family status, there are some other important concepts to keep in mind:

  • Some assets will not pass. Not all assets can be inherited through intestate succession. Life insurance proceeds, retirement account funds, property you own with another person, and living trusts are not passable. In addition to this, keep in mind that any enforceable debts that have been left unpaid must b settled out of your estate before the remaining property passes to your heirs.
  • Complex family situations may factor into the process. Today, many families do not consist of the simple two-parent, two-child households we are used to seeing on television. Will adopted children or half-siblings receive property from your estate? The answer to both is yes. Adopted children will receive the same share as biological children, as long as they were legally adopted. Further, if a person has a child outside of his or her marriage, that child will receive the same property share if paternity is established. For half-relatives, they will legally be treated as if they share both parents in common, instead of just one.
  • There is a timeframe for survivorship. Finally, and maybe most importantly, a person is entitled to receive an inheritance from your estate if they outlive you by 120 hours. Hence, if your sister passes away one day after you do, her estate cannot receive any of your property.

A Lawyer Can Help

The process of Probate can be time-consuming and unpredictable, especially when the court is tasked with dividing your estate through intestate succession. By drafting a will and other estate planning instruments, however, you can be certain that your property will go to those you wish to receive them. To learn more about drafting a will, contact a Naperville estate planning attorney at the Gierach Law Firm today. Call 630-756-1160 and let us assist you in providing your family with the peace of mind they deserve.



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Illinois Probate Act of 1975