If you die without a valid will in the State of Illinois, a “default” estate plan has been made on your behalf based on the laws of intestate succession. Under these laws, the State of Illinois has already determined who your “heirs” are; thereby deciding who gets any property that passes through probate and when they get it. (Note: Some assets do not pass through probate, including, but not limited to, accounts or real estate with joint ownership, accounts with beneficiary designations, pay on death designations or transfer on death designations.)
Shouldn’t you and not the State of Illinois decide who receives your assets and when!?
Sometimes these laws distribute your assets to your loved ones as you would have intended. For instance, if you are married with no children at the time of your death, according to the law, your spouse receives everything. But according to these same laws, did you know that if you are married and have children at the time of your death your probate assets would be divided with one-half going to your spouse and one-half divided in equal shares among your children? The questions that arise with the State’s default estate plan are plentiful.
1. What if the surviving spouse needs all the assets for his/her support and financial survival? This is often the case for couples who have older children who are able to support themselves without their parents’ help.
2. What if the children are under 18? Although the children’s one-half share would be used for their support while minors, they would have full rights to their remaining share at 18 and can spend it on anything they want. Further, they can ask the surviving spouse or guardian for an accounting of the funds, and if they don’t believe the funds were handled properly, they can file a lawsuit against the surviving spouse/guardian.
3. What if you want to leave unequal shares to your children? The laws say that each child receives an equal share.
4. What if you want to leave some money to your church, school or a charitable organization through your will? The laws don’t account for this.
5. What if you have a family member with special needs? Even a small inheritance could make them ineligible for needs-based government assistance.
6. What if you have step children that are not legally adopted? Those children who you treated as your own emotionally, would not be treated that way by the State and would not automatically receive part of your assets.
7. What about unmarried couples? Under the State’s current law, the surviving person would have virtually no rights.
Obviously, this is not a full explanation of the laws of intestate succession, but it definitely should get you thinking about whether you want to decide to whom your assets go, or if you want the State of Illinois to decide.