What happens if you die without a will (intestate) and have no other estate plan? You have died intestate and your family must go through probate court to administer your estate, which can be a very costly and time-consuming process for them. Where your assets go depends on whether you were married and/or had children. Four scenarios in Illinois for intestate distribution are as follows:

  1. If you were married and had children, then ½ of your estate is distributed to your spouse and the other ½ is distributed to your children (or their branch of the family tree), per stirpes. Per stirpes is a legal term from Latin. It means that each branch of the family tree heirs receives an equal share of the estate. So your children would split their ½ equally amongst themselves. If a child predeceased their parent, that child’s share would go to their children.  
  2. If you had a spouse and no children, then your entire estate is distributed to your spouse.
  3. If you did not have a spouse but did have children, everything would be distributed to your children, per stirpes.
  4. If you did not have a spouse or children, then your estate would be equally distributed to your parents and siblings.

You may have all heard that Prince (a.k.a. The Artist Formerly Known as Prince, a.k.a. the unpronounceable “Love Symbol”) died intestate. When Prince died, his parents had passed away and he had one full sister and five half-brothers and sisters. Prince passed away in Minnesota, but if he passed away in Illinois, under Illinois probate laws, his six siblings would all share the estate, equally, which is likely what he would have wanted. There was a snag that almost upset that turnout when an incarcerated man filed a legal challenge claiming that he was Prince’s biological son. DNA proved otherwise, but if he actually turned out to be Prince’s son, under Illinois intestate laws, this stranger would have been distributed the entire estate. I really don’t think that would have been Prince’s wishes for how he wanted his estate distributed. Would intestate laws be how you want your estate distributed?

But it’s not just where our property goes after we die. We should all have estate plans in place in order to make sure our wishes are followed for several end-of-life events:

You want your end-of-life wishes to be followed. You may remember or have heard of the right-to-die case of Terry Shiavo. In 1990, Terry had a heart attack when she was 26 years old. Although she was successfully resuscitated, she had massive brain damage and was left in a coma.  Terry’s husband and her parents engaged in a legal battle that lasted for years, as Terry’s husband wanted to remove her feeding tube and her parents opposed it. After court rulings and appeals through the federal court system that upheld the lower court’s original decision to remove her feeding tube, staff at the hospice facility finally disconnected her feeding tube on March 18, 2005, and Schiavo died on March 31, 2005, 15 years after she went into a coma. Would you want your parents and spouse fighting over keeping you alive? Or would you want your family to follow your wishes?

There are several important documents in your estate plan that can specify how you want to be cared for if you were unable to advocate for yourself and how you want your dependents to be cared for if you .

  • The first is called a Living Will or an Advance Healthcare Directive – this is a legal document in which you specify what actions should be taken for your health if you are no longer able to make decisions for yourself because of illness or incapacitation. You can put this on file with your doctor, so that they know your wishes.
  • A Durable Healthcare Power of Attorney goes hand-in-hand with the Living Will.  This document allows you to appoint someone to carry out your wishes about end-of-life treatment that are written down in a Living Will or medical directive.
  • A Durable Property Power of Attorney will allow financial decisions to be made if you are unable to do so.
  • A Last Will and Testament (or Will for short) or a Pour-Over Will – is a legal document that will outline how all of your property should be distributed at death.  But this document is also important if you have children, because you can specify who you want to be the guardian of your children. And if you would like, you can select different people to handle the finances for the children vs. who raises them.

There are several things to consider when choosing a guardian or a back-up (Successor) guardian for your children. For example, perhaps you name your sister and her husband as the co-guardians for your children. This may sound great because they have 3 children, and you know that your sister loves your children. But imagine a scenario where your sister is in a fatal car accident  with you and your spouse. Now her husband is left a widower with 3 of his own children and your children. Would you still want her husband to be the guardian? Are you sure that he could handle it on his own, or that he would love your children as much as your sister would? Maybe you only want your sister to be the guardian, or you only want her husband to be guardian if he is co-guardian with your sister. If she passes away, you need to have a back-up plan for someone else  to be their guardian. These are steps that people don’t always think through, especially if they use Legal Zoom or some other legal document service that does not account for these nuances.

If you didn’t have a will, then who becomes the guardian of your children is at the mercy of the courts. Think about this example of how your failure to plan could harm the family dynamic after your passing: your mother decides to ask the court to become the children’s guardian. But your mother-in-law thinks that she should be the guardian, and a legal fight commences over who is the best grandparent to be awarded guardianship. Maybe you really wouldn’t want either set of aging grandparents to be the ones raising your children. Or maybe you don’t mind, but you really didn’t want them to fight over the children in court. Now there is tension between the two sides of the family, as the fight gets played out in court. The two sides of the family no longer get along and your children can feel the tension between the grandparents. Once you are dead, it is out of your control. If you had an estate plan, it would have prevented this nasty court battle. You need a plan.

Trusts are another important tool in estate planning.  The use of revocable trusts are becoming more common. Trusts avoid probate. Typically, the person that is generally considered the “owner” of the property appoints themselves as trustee to hold the property in trust for themselves and then when a certain event occurs (usually death) the property flows to a successor trustee that holds the property for the benefit of themselves or others.

A very good reason to have a trust is if you own real estate. Your estate is automatically in probate if you pass away with any real estate in your name alone, or at least $100K in personal property in your name alone. A revocable trust is one of the ways you get around that. However, you have to fund your trust by opening a bank account for the trust. Otherwise, the trust is just a legal concept on a piece of paper.

So what are you waiting for? Are you such a risk-taker that you don’t think it’s necessary? Or maybe you just hate the idea of death so much that you would rather pretend like it will never happen. As the saying goes, “…in this world nothing can be said to be certain, except death and taxes.”

If you are ready to start your estate plan, we can be of help to you. I’d invite you to visit us online at: www.jelteslaw.com or call us at (312) 758-1358.

Content provided by Women Belong member Kelly Bennett