Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Detailed Answer
Under Illinois intestacy rules (755 ILCS 5/2-1), a decedent’s assets pass to heirs based on their relationship to the decedent:
- If the decedent is survived by a spouse but no descendants or parents, the spouse receives the entire estate.
- If the decedent leaves a spouse and descendants who are all shared with that spouse, the spouse receives one-half and the descendants share the remainder.
- If the decedent is survived by a spouse and descendants not shared with that spouse, the spouse takes one-third and other descendants split two-thirds.
Before distributing the estate, the Probate Act sets aside statutory allowances. Under 755 ILCS 5/12-1, the surviving spouse can occupy the decedent’s homestead as a life estate. The law also grants the spouse a family allowance and a personal property allowance out of the estate before intestate shares distribute.
The life estate right in the homestead arises automatically for the surviving spouse. It does not replace the intestate share; rather, the spouse enjoys the life estate plus any remaining share in cash or other property under 5/2-1.
Non-spouse heirs cannot elect to take a life estate in assets instead of their intestate share. All heirs receive their share outright. If you wish to hold a life estate in specific property, you must negotiate with other heirs or petition the court for partition under Illinois law.
Helpful Hints
- Review 755 ILCS 5/2-1 (intestacy) and 5/12-1 (homestead allowance) on the Illinois General Assembly website.
- Maintain an up-to-date estate plan to control property interests directly.
- Obtain a current appraisal before negotiating a life estate or partition.
- Consider mediation or family agreements to allocate property interests amicably.
- If you’re the surviving spouse, file for homestead and allowances early in probate.
Note: This summary is not legal advice. Seek guidance from a licensed attorney to address your situation.