If You Don’t Have An Estate Plan, Illinois Has One For You (….and you may not like it!).

Last Will and Testament with glassesDo you really want Illinois law to dictate where your assets go upon your death? And do you really want to pay more legal fees and court costs than necessary? If you answered NO, you are like most people, and 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: The person who died (the “decedent”) was married and had two children, ages 8 and 11. Hisprobate assets would be pass ½ to his spouse and ½ to his two young children. Because he did not create a trust to hold any assets for the benefit of his minor children, his spouse will have to petition the court to be appointed as guardian of the estate for the children to hold their share of the assets until they are 18. Until they are 18, the surviving parent 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 children (NOTE: the asset held for the children cannot be used for the surviving parent’s benefit). When the children turn 18, their respective share of what is left will be handed over to them to do whatever they want with it.

Example 2: The decedent was unmarried and has no children or living siblings, but has 12 nieces and nephews, 1 of whom she is very close with because he visits her several times each week and drives her everywhere, and 3 of whom she has absolutely no contact with. She has some contact with her other 8 nieces and nephews and would have liked to leave each of them a small share of her estate. However, because she did not have a valid will, her probate assets will instead pass in equal shares to these 12 nieces and nephews, even though she would have rather had 50% of her estate go to her favorite nephew and the other 50% be divided equally among her other 8 nieces and nephews who she sees for birthdays and holidays.

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

In each of these three examples, a family member would have to open an intestate probate estate, possibly having to argue in probate court why he/she should be appointed the administrator instead of another family member. Then he/she would be required to purchase a surety bond (like an insurance policy) to protect the estate assets. The result of not having a valid will is very likely going to be unnecessary fighting, and definitely unnecessary costs. Even after the added expense and possible family fighting, the results will not even be what the decedent would have wanted!

All of this could have been avoided with good estate planning. Don’t let this happen to you and your family. WPD can help!

Should you have any questions about an estate plan or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.