Illinois probate law

What is the name of your state? Illinois

My sister died on Jan. 12 2008 with a will that stated her husband must survive her by 60 days. Her husband died on Jan. 21 2008. My attorney cites Illinois probate law that says if there is a surviving spouse but no decendant of the decedant the entire estate goes to the surviving spouse.

The question is what effect does or did the will have on the Illinois law? Is the will ignored?

Q: My sister died on Jan. 12 2008 with a will that stated her husband must survive her by 60 days. Her husband died on Jan. 21 2008. My attorney cites Illinois probate law that says if there is a surviving spouse but no decendant of the decedant the entire estate goes to the surviving spouse.

A: See info from CCH below.


Q: The question is what effect does or did the will have on the Illinois law? Is the will ignored?

A: The will is not being ignored; it is being followed. Now, if there is no contingent (or second) beneficiary after the husband, then the intestate succession laws will be followed (see below). If there is a contingent beneficiary, then that person will get the stuff.


If this does not answer all your questions, then post back.



Illinois Intestate Succession Laws

If any part of an Illinois decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:

* A surviving spouse is entitled to the entire intestate estate if the decedent is not survived by any descendants.
* If the decedent is survived by descendants, the surviving spouse is entitled to one-half of the intestate estate (with the other half going to the descendants).

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

1. Decedent's descendants, per stirpes.
2. Decedent's parents, brothers, and sisters in equal parts. If one parent is dead, the surviving parent gets a double portion. If a brother or sister predeceases the decedent, their descendants take the predeceased sibling's share per stirpes.
3. Decedent's grandparents or their descendants. Half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents, or either of them if both are deceased. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
4. Decedent's great-grandparents or their descendants. Half of the estate passes to the decedent's paternal great-grandparents equally if both survive, or to the surviving paternal great-grandparent, or to the descendants of the decedent's paternal great-grandparents, or either of them if both are deceased. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving great-grandparent or descendant of a great-grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
5. Decedent's nearest kin in equal degree.

3. State of Illinois. If there is no taker under any of the above provisions, the intestate estate reverts (escheats) to the state of Illinois. Real estate in the estate generally goes to the county where the real estate is located. Personal property in the estate generally goes to the county where the decedent was a resident.

Illinois Intestate Succession Law Fun Facts

* Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
* It's payback time! A parent that abandons or otherwise willfully neglects to support his or her minor or dependant child for a year or more prior to the child's death will generally have their share of any inheritance reduced. A court must examine the effects the abandonment had on the child's prospects and quality of life. At a minimum, the court is required to reduce a bad parent's inheritance share by the amount of unpaid child support payments.
* On a similar note, any person who intentionally and unjustifiably causes somebody's death is prohibited from benefiting by the death in any way. All of the decedent's property will be distributed as if the person who caused the death had predeceased the decedent. Anyone convicted of first or second degree murder is presumed to be ineligible to inherit from the murder victim.
* Illinois' intestate succession laws, as well as other related laws, can be found in Chapter 755 of the Illinois Compiled Statutes.



Copyright 2002 - 2008, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

So the fact that he did not survive her by 60 days has no meaning?

Q: So the fact that he did not survive her by 60 days has no meaning?

A: Huh? Of course it does! Answer my questions above: Was there a named beneficiary AFTER husband?

Unfortunately no.

Thanks for your help in this.

Bottom line: Since my brother-in law did not survive my sister by 60 days as provided in her will do my other sister and I have any claim on her estate per paragraph 2.2?

I have reread your reply and I think you answered this. Sorry I'm so dense!

Seems odd to insert a survivorship clause in the will, especially as long as 60 days, and then provide no contingency.

One ends up with the perverse outcome that you revert to the intestate statute which, in the absence of any descendants of sister, gives the assets to the spouse. Or, in this case, the spouse's estate.

Unless there is some survivorship test tucked away in the IL statutues (and, even if there is, most states only mandate survivorship by a few days), I would say that your attorney told you right.

What is the definition of intestate estate here? What happens to any assets that are mentioned in the will--are all of those assets now considered as part of the intestate estate? And shouldn't her brother qualify as a descendant thus eligible for half of the "intestate" estate?

DANDY DON IN OKLAHOMA ([email protected])

Dandy Don said:

What is the definition of intestate estate here? What happens to any assets that are mentioned in the will--are all of those assets now considered as part of the intestate estate?
DANDY DON IN OKLAHOMA ([email protected])

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It isn't really a question of testate or intestate. From the OP's description of the will, it is more akin to distribution of the residual estate where the will has no clause instructing how any residual should be distributed. The state's descent and distribution rules take over.

And shouldn't her brother qualify as a descendant thus eligible for half of the "intestate" estate?

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Siblings are not descendants.

According to section 2-2 (that mentions decedent's parents, brothers, sisters, etc.), they are, as well as the dictionary definition and legal definition.

Dandy Don said:

According to section 2-2 (that mentions decedent's parents, brothers, sisters, etc.), they are, as well as the dictionary definition and legal definition.

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I don't know where you are finding that definition. But, this is the normal definition of a descendant:

Descendants are those who are the issue of an individual, such as children, grandchildren, and their children, to the remotest degree. Descendants are those in a descending line of birth from an individual, rather than an ascending line, such as to the parents of the individual.

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Sometimes, siblings are referred to as "collateral" descendants. But, in the context of the descent and distribution statute, it is clear that descendant refers to the issue of the deceased.

Section 2.2 would only be applicable if there is no surviving spouse or descendants (lineal descendants or issue of the deceased). Now, there may be something tucked away in the Illinois statutes or case law that would knock out a surviving spouse that only survived the deceased spouse by 9 or 10 days and make the OP eligible to inherit. But I would think that the opinion offered by the OP's attorney is correct.