How Are Heirs Determined in Illinois?

An heir is someone who is legally entitled to receive property upon a person’s death. Every state gets to decide who the natural heirs of a decedent are, and the states will publish their own laws of descent and distribution outlining heirship.  The laws of descent and distribution are important when determining heirship as they specifically outline who stands to inherit from a deceased person in the absence of a will or trust.

Illinois’ Law of Descent and Distribution

Illinois has codified its law of descent and distribution in the Illinois Probate Act of 1975, 755 ILCS 5/2-1. The Illinois Probate Act lists degrees of heirship. Generally speaking, the closer relations to the decedent take shares of the estate prior to more distant relations. But distribution is also partially determined by whether the decedent was married and had children. The list of heirship is as follows:

  1. If the decedent has a surviving spouse and surviving children, then the spouse gets half of the estate and the surviving children take the other half of the estate. It has been our experience that spouses prefer to have their entire estate go to their surviving spouse unless the surviving spouse is not the other parent of the decedent’s children. Therefore such a result that arises when no estate plan is in place is generally not desired.
  2. If there is no surviving spouse of the decedent but there are surviving children (or descendants), then the surviving children take the entirety of the estate.
  3. If the decedent has no surviving spouse nor surviving descendants, then the estate is split between the decedent’s siblings and parents.

This is only a small portion of the Illinois heirship chart. As you can see, the closer relatives take first, and if there are no close relatives the more distant relatives become heirs. It is also important to note that gifts to children are per stirpes, meaning that if a child is not living but a descendant of the child is living, the descendants of the deceased child take the deceased child’s share.

Heir vs. Legatee

Some confusion arises in Illinois probate court regarding the difference between an heir and a legatee. An heir is the person who legally stands to inherit assets in the absence of direction from the decedent. Whereas a legatee is someone the decedent has directed shall receive assets. So if a decedent had a will leaving money to a nephew, the nephew is a legatee. If the decedent had children, then the nephew is not an heir (since the children would take to the exclusion of more distant relatives). It is possible for a person to be both an heir and a legatee. For instance, a person may direct in their will that their child is to receive their estate. The child may stand to receive the estate in the absence of a will anyway, but the will turns the child into a legatee as well.

Avoiding the Illinois Law of Descent and Distribution

The Illinois laws of descent and distribution are default rules on how assets are distributed. Often times a person does not like the default rules and would rather specify how his or her assets should be distributed on death. The laws of descent and distribution can be avoided by creating a will and/or trust outlining who should receive the assets upon death. It is important to list contingent beneficiaries however, as it is possible for a scenario to arise where no named beneficiaries are living and the will and trust will direct that the assets be distributed according to the Illinois laws of descent and distribution. 

Creating a Comprehensive Estate Plan

It is important to create a comprehensive estate plan to avoid the default rules in Illinois so that you can be assured that your assets will pass to the people you intend upon your death. Many people utilize a combination of a will and a trust to name beneficiaries and create a more sophisticated asset distribution plan. Having a plan in place will make sure your assets pass to your loved ones upon your death and upon your terms.

Contact the Libertyville and Gurnee Will Lawyers at Johnston Tomei Lenczycki & Goldberg LLC Today

If you have no plan in place and are worried about how your assets may be distributed upon your death, then it is important to speak with the Libertyville and Gurnee will lawyers at Johnston Tomei Lenczycki & Goldberg LLC. We offer a no charge initial consultation to determine your needs. We offer flat-fee, upfront pricing so you can decide which plan best fits your needs. It is important to have a plan in place to ensure your assets go to your loved ones. If you have no estate plan in place, call us today to get the process started.



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Johnston Tomei Lenczycki & Goldberg LLC

Phone Number: (847) 549-0600
Fax Number: (847) 589-2263

Libertyville Office
350 N. Milwaukee Ave., Ste. 202
Libertyville, IL 60048

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