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The Illinois Intestacy Will: An Unplanned Estate Plan

Plan

Are you thinking about creating a Will, but just have not gotten around to it yet?  You’re not alone.  I’m going to be completely honest with you, it’s not as much fun as watching a movie or going on vacation.  Procrastination can be a powerful force.

Even if you’ve never thought about estate planning, the good news is that you already have a Will.  The bad news is that the Will that you already have was written for you by your state legislature.  Every state, including Illinois, has adopted laws that effectively create a default Will for anyone who does not make their own.

Here is an illustration of how the Illinois default Will reads for intestate estates:

LAST WILL AND TESTAMENT

OF

EVERY ILLINOIS RESIDENT THAT DOES NOT EXECUTE A WILL

 
ARTICLE I – SPECIFIC GIFTS
I do not want to make any specific gifts of property to any individuals or charities and I do not want to direct or guide how to divide my property or personal effects among my heirs.
 

ARTICLE II – RESIDUARY ESTATE
I leave my entire estate to my legal heirs strictly as proscribed by the Illinois Statute of Descent and Distribution as in effect at my death.  As the law currently provides:

(a)  I give 1/2 of my estate to my spouse and 1/2 of my estate to be divided equally among my surviving children and the then living descendants of my deceased children, per stirpes;
(b)  If spouse predeceases me, then I leave my estate to be divided equally among my surviving children and the then living descendants of my deceased children, per stirpes;
(c)  If I have no surviving spouse or living descendants, then I leave my estate in equal shares to my parents (double share if only one living parent), siblings and descendants of deceased siblings;
(d)  If I have no surviving parents, siblings, nieces or nephews, then I leave my estate 1/2 to my maternal grandparents (or their descendants, per stirpes) and 1/2 to my paternal grandparents (or their descendants, per stirpes);
(e)  If I have no grandparents or descendants of grandparents, then I leave my estate 1/2 to my maternal great-grandparents (or their descendants, per stirpes) and 1/2 to my paternal great-grandparents (or their descendants, per stirpes);
(f)  If none of the above, then to my nearest kindred as defined by Illinois law;
(g)  If I have no relatives, then to the State of Illinois.
 

If an heir is unknown or cannot be found then I want their share to be deposited as unclaimed property with the county treasurer.

If I own real property in another state, then I give that property, subject to a separate ancillary probate proceeding, to whoever is entitled to inherit under that state’s probate statute.

ARTICLE III – MINOR CHILDREN
If any of my children are under 18, I want the Probate Court to force open a separate minor’s guardianship estate to administer the inheritance of each minor child of mine.  I want the activity of the minor’s estate to be subject to continuing court supervision and I want all of the court costs, attorney’s fees and guardian’s expenses be paid out of my children’s shares of the estate.

I don’t want to give any input or instructions as to who will be appointed as guardian of my minor child’s person and property.  If everyone cannot agree, I want my extended family to fight in Probate Court over the guardianship and custody of the person of my minor children.

Immediately upon reaching age 18, my child shall be given all assets remaining in the guardianship estate outright with no restrictions or limits.   My child may then spend the inheritance as he or she sees fit without protection for my child’s health, welfare, education and special needs.

If a child of mine has a disability upon reaching majority, I wish to disqualify my child from qualifying for public aid programs, such as Medicaid and SSI, until all of the assets are expended for his or her care.

ARTICLE IV – NO EXECUTOR APPOINTED
I do not choose any person to act as executor of my estate.  Instead, any person who qualifies may petition to be appointed by sending notice, at least 30 days prior to a probate hearing, to all other persons who have equal or greater preference to serve.  The administrator shall be appointed according to a preference system decided by the Illinois legislature.  Ultimately, if my family cannot agree, I want the probate judge to decide who to appoint after holding a contentious hearing among battling family members. I don’t mind that this process will delay payment of funeral and administration expenses.

Rather than choosing to waive the surety bond requirement, I direct that the administrator be required pay an insurance company for a surety bond in the amount of 150% the value of my personal estate.  If the administrator wishes to sell real estate, I want the administrator to go back to court to purchase and obtain an additional surety bond.

I do not direct independent administration.  Therefore, I accept that any heir can demand supervised administration for no reason at all, thereby making the estate much more cumbersome and expensive to administer, and increasing attorney’s fees.

ARTICLE V – MISCELLANEOUS
I do not wish to take any steps to minimize Federal or Illinois estate or income taxes.  The administrator shall have only those powers that happen to be allowed under the probate code and shall have no authority to manage or dispose of my digital assets.

/S/ EVERY ILLINOIS RESIDENT THAT DOES NOT HAVE A WILL

Failure to Plan is Planning to Fail

Nowhere is this old adage more true than in the estate planning arena.  Through a Will you can change the default plan in any way you wish and nominate an appropriate executor to carry out your plan.  Don’t leave these important directions to chance or up to default state laws that make administration more cumbersome and rarely fit your personal situation.

For more information on estate planning, please feel free to review our Estate Planning Information Center.

Image courtesy of Stuart Miles / freedigitalphotos.net

Image courtesy of Stuart Miles / freedigitalphotos.net – See more at: http://www.illinoisestateplan.com/updating-living-trusts-amendment-vs-restatement/#sthash.0LsUg9AY.dpuf
Image courtesy of Stuart Miles / freedigitalphotos.net – See more at: http://www.illinoisestateplan.com/updating-living-trusts-amendment-vs-restatement/#sthash.0LsUg9AY.dpuf