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  1. #1
    hsommer is offline Junior Member
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    Death of Beneficiary

    What is the name of your state? Illinois
    My grandmother passed away and her will states the 2 beneficiaries as my mother and her sister; however the sister has died but her child believes he is entitled to his mother's half of the estate. Are there laws that dictate what happens to the estate if the beneficiary named has died? Did grandmother have to specifically name the grandchild as a "back-up" beneficiary for him to receive 1/2 of the estate? Grandmother's attorney (the one who wrote the will) has given conflicted answers...first he told my mother she would get everything since her sister had died, then the grandson visited the attorney and he (the attorney) is now claiming everything will be divided.
  2. #2
    Dandy Don is offline Senior Member
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    If the will uses the phrase "per stirpes" or "her issue (meaning her children)" then there is a chance that the mother's share of the estate can be passed on to the children. If not, then her children have no right to think they are automatically entitled to anything.

    A definite determination can not be made here because a probate attorney needs to look at the actual language that is used in the will.

    DANDY DON IN OKLAHOMA (tiekh@yahoo.com)
  3. #3
    dmode101 is offline Member
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    I am an Illinois probate attorney. The answer here is not so obvious and certainly depends on the particular language in the will. Illinois has something commonly called an "anti-lapse" statute (see 755 ILCS 5/4-11). What this means is that, with respect only to gifts made to the testator's descendants, which this is, there is a preumption that the gift was intended to be a "per stipres" gift unless there is EXPRESS language in the will indiciating otherwise. So if the gift simply said something like "I give the residue to be divided equally between my children.", then most likely a court would find that the anti-lapse statute applies so that the descendants of a deceased child would take their parent's share.

    But, like Don says, you should have an attorney take a look at specifically at the language in the Will to get an opinion on whether the anti-lapse statute applies in this case.
  4. #4
    seniorjudge Guest
    Quote Originally Posted by hsommer
    What is the name of your state? Illinois
    My grandmother passed away and her will states the 2 beneficiaries as my mother and her sister; however the sister has died but her child believes he is entitled to his mother's half of the estate. Are there laws that dictate what happens to the estate if the beneficiary named has died? Did grandmother have to specifically name the grandchild as a "back-up" beneficiary for him to receive 1/2 of the estate? Grandmother's attorney (the one who wrote the will) has given conflicted answers...first he told my mother she would get everything since her sister had died, then the grandson visited the attorney and he (the attorney) is now claiming everything will be divided.
    I am assuming that your aunt died after grandma and that the anti-lapse statute applies.

    When grandma died, then auntie got a share of that estate.

    When auntie died, then her heirs get what auntie had. The stuff must be distributed as her will states. If auntie did not have a will, then her stuff (i.e., the stuff she got from grandma and whatever else she had) will go like this:

    [url]http://www.finance.cch.com/pops/c50s10d190_IL.asp[/url]

    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 - 2005, CCH Tax and Accounting - A WoltersKluwer Company. All Rights Reserved.
  5. #5
    hsommer is offline Junior Member
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    Illinois--
    No, the aunt did not die after grandma--she died before her. The will was written in 1999 by Grandma and my aunt was alive, then the aunt died in 2002 and my grandma died this year. So does that make a difference?

    Also, is it odd that grandma had a trust and a will but right now there is no talking of probate? Does my mother have to initiate probate or does that automatically happen? Confused.?!!?!?
  6. #6
    seniorjudge Guest
    Quote Originally Posted by hsommer
    Illinois--
    No, the aunt did not die after grandma--she died before her. The will was written in 1999 by Grandma and my aunt was alive, then the aunt died in 2002 and my grandma died this year. So does that make a difference?

    Also, is it odd that grandma had a trust and a will but right now there is no talking of probate? Does my mother have to initiate probate or does that automatically happen? Confused.?!!?!?
    Q: So does that make a difference?

    A: I suspect it does and let's hope dmode101 will come back on here and answer your question.


    Q: Also, is it odd that grandma had a trust and a will but right now there is no talking of probate?

    A: What do you mean by "there is no talking of probate"?


    Q: Does my mother have to initiate probate....

    A: Yes, if she wants probate to get started.


    Q: or does that automatically happen?

    A: No. I have never heard of "automatic probate"...what do you mean?
  7. #7
    dmode101 is offline Member
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    Quote Originally Posted by hsommer
    Illinois--
    No, the aunt did not die after grandma--she died before her. The will was written in 1999 by Grandma and my aunt was alive, then the aunt died in 2002 and my grandma died this year. So does that make a difference?
    That's what I had assumed. Again, it depends on the language of the Will but the general anti-lapse rule (with respect to descendants) is that the gift will be per stirpes unless there is express language indicating a different intent.

    [/QUOTE]Also, is it odd that grandma had a trust and a will but right now there is no talking of probate? Does my mother have to initiate probate or does that automatically happen? Confused.?!!?!?[/QUOTE]

    Probate does not automatically happen. It would have to be initiated by someone. Keep in mind that only assets titled in grandma's SOLE NAME would be subject to probate. For example, assets titled in a trust would not be subject to probate. Therefore, if grandma titled all assets in a trust then there would be no need for probate. In addition, Illinois has a "small estate affidavit" procedure in place for transferring personal property valued at less than $100,000.
  8. #8
    hsommer is offline Junior Member
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    Thank you all for answering my questions. As you can tell I have no experience in this area (wills/trusts/probate) at all and neither does my mother, that is why I am concerned. The money/property that has been left exceeds $100,000 by a lot. Currently, she is having a lawyer look at the wording in the trust and will and I will post again if/when I find out new information. This forum is so great and I appreciate you taking the time to post your responses.

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