If something happens to you and you don't have a will or a trust in place, Illinois already has a plan for you. It's called intestacy, a set of default rules that determine who inherits everything titled in your name alone, and unless you plan around those rules, the result often isn't what families expect.
One rule that people are surprised to learn about involves distribution provisions related to surviving spouses and children. Say a husband and wife buy a house and raise their children there, but the house is titled in only one spouse's name. If that spouse passes away without a will or a trust, half of the house would go to the surviving spouse and half would go to the children, which means the surviving spouse would suddenly co-own their own home with their kids.
Intestacy rules apply only to assets in your name alone, meaning there's no joint owner and no beneficiary designation. When someone who was married with children passes away, the surviving spouse receives half and the children divide the other half. A surviving spouse with no children receives everything, and if there's no surviving spouse, the children share the estate equally. If there's neither a spouse nor children, the estate passes to parents and siblings, and then to more distant relatives.
It's also worth knowing that these rules recognize only legal family relationships. A longtime partner or a stepchild you've raised as your own wouldn't inherit under these rules unless you've married or adopted them. A will or a trust is how you make sure the people who matter to you are included.
The situation becomes more complicated when children are under 18, because minors can't inherit assets directly. A bank or retirement plan can't simply hand a minor child their share. Instead, the court appoints a guardian, often the surviving parent, to manage the child's share. That guardian has to report to the court and get its approval for many decisions about the money. When the child turns 18, the guardianship ends, and the child receives whatever is left all at once.
A trust lets you make decisions regarding how a young child inherits yourself, without the court's involvement. You choose the trustee who manages your children's inheritance and the ages at which they receive it, such as half at 25 and the rest at 30. It's a kind of training wheel approach, because if a child doesn't make the best decision with the first distribution, they get a second chance five years later.
Without a plan, no one would have legal authority over assets in your name alone, not even your spouse or children. A family member would have to petition the probate court to be appointed administrator, notify the heirs, and publish a notice to creditors for three consecutive weeks. The estate would then have to stay open for at least six months so creditors could file claims. In Cook County, where the court calendar is backed up, simply getting a first hearing can take six to eight weeks, and a typical probate takes about two years.
During that time, the family's hands are tied. If the main asset is a parent's house and a buyer is ready, no one can sell it until the court grants authority through what are called letters of office. Technically, no one is even allowed to go into the house, because being the deceased person's child doesn't give you any right to it. Meanwhile, the family is grieving while the bills pile up, often with no access to the money to pay them.
A will is far better than having nothing. It lets you choose who inherits and who's in charge, and in Illinois, it's also the document that names guardians for minor children. But a will does not avoid probate, so your family would still have to go through the entire court process. Believing a will avoids probate is a major pitfall.
A revocable living trust works like a detailed instruction booklet for your assets, naming who's in charge and who receives what, without involving the court. Alongside it, you have what's called a pour-over will, which catches anything that didn't make it into your trust during your lifetime and moves it into the trust, and also names guardians for minor children. Powers of attorney for property and health care complete the plan, so the people you choose have the authority to act whether you're incapacitated or have passed away.
Estate planning isn't about death and dying. It's about life and living, and making sure the people you love aren't left with the state's default plan. If you don't have a plan yet, or it's been a while since you reviewed yours, we'd be glad to help.
This article is for informational purposes only and is not intended as legal advice. Please consult a qualified estate planning attorney regarding your specific situation.