Illinois Probate: Heirs vs. Legatees

Last year I wrote about the importance of distinguishing between ‘Heirs vs. Descendants’ in the estate planning context. Today’s post will highlight the difference between ‘heirs’ and ‘legatees’ in the probate context.

Who are the Heirs in a probate estate?

The Affidavit of Heirship

In Illinois probate, identification of a decedent’s heirs is typically established through an “affidavit of heirship’ filed with the probate court. This heirship is a narrative that lays out the facts used to conclude who the decedent’s legal surviving heirs are. The individuals who are entitled to a share of an intestate (no will) estate are the heirs. The terms of a Will cannot alter the heirship.

Who are the Legatees in a probate estate?

Legatees are the persons or entities that are designated within a decedent’s Will to receive any gift (a “legacy”) from the estate. In other words, the legatees are the beneficiaries under the Will. The legatees may or may not also be heirs, and the heirs may or may not also be legatees.

Consider this example

Tim Terrible is married to Wilma Wife and has three children. If Tim dies leaving a Will that gives 95% of his estate to Mary Mistress, 5% to his children and zero to Wilma Wife, then:

• Tim’s children are both heirs and legatees;
• Wilma Wife is an heir (but not a legatee);
• Mary Mistress is a legatee (but not an heir); and
• Tim is a really bad person.

Heir and/or Legatee = Interested Person

Anyone that is either an heir OR a legatee (or both) is considered to be an “interested person” when an Illinois probate estate is opened. Interested persons have various rights (e.g. to contest the Will) and are entitled to certain notices when a probate estate is opened. More on interested persons and probate notices in future posts.