Elder Law

Estate Distribution

When a person dies without a will in the state of Illinois, the estate’s assets are distributed according to Illinois’ Estate Administration Act (“EAA”). If a person dies with a will, but that will does not cover all of the estate’s assets, the assets not covered in the will are also distributed according to the EAA. A judge cannot change how an intestate estate is distributed, since it is as if that method is written in stone. If the deceased is survived by a spouse but not children, the spouse inherits the entire estate. If the deceased is survived by a spouse and children the first $65,000 and one­half of the remaining assets of the estate goes to the spouse and the rest goes to the child. If the decedent is survived by a spouse and more than one child the first $65,000 and one­third of the rest of the estate goes to the spouse and the rest of the estate is divided equally among the children. The surviving spouse also inherits a life estate in the matrimonial home, if the spouse did not already inherit it from one of the circumstances listed above. The spouse also receives the household furnishings. If a spouse or children do not survive the decedent, the order of who will receive the estate is as follows: the decedent’s parents, the decedent’s siblings, nieces and nephews and next of kin. If there are no relatives, it escheats, which means it goes to the state under the Escheat Act, R.S.B.C. 1996 c. 120. Under § 98 of the EAA, if the decedent is survived by a spouse with whom the decedent was separated with and had no intention of resuming living with for over one year, that separated spouse is barred from having a claim on the estate unless the court rules otherwise. (See Re Murray (74) B.C.S.C., and Law v. Tretiak (1993), B.C.L.R. (2d) 1 (C.A.)). Children who were conceived but not born before the deceased died can inherit as if they were born before the death. Half­blood inherits as if they were whole blood. Adoptive children can inherit as if they were natural born children. Under EAA § 92, the court can consider allowing a child to receive a major advancement during the intestate’s life of what the child will be entitled to inherit once the intestate dies.