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DuPage County estate planning attorneyDo you have a plan for the allocation of your property and assets in the event of your death? Such concerns can be difficult to address, as many people, including a large number of my clients, have trouble with the concept of death and estate planning. It is extremely important, however, to formalize arrangements for your estate well in advance. As uncertain as the future may be, leaving your estate in the hands of the state without a will or other direction can be even more unpredictable. Personal assets that are not addressed in a will or a trust are known as intestate property and will be allocated by the state in accordance with its intestacy laws.

Intestate Succession

The condition of intestacy is created, generally, when a person dies without a will. In the event a will was created but did not make provisions for certain assets or contain broader provisions for unaddressed assets, intestacy laws are applied to the specific, unaddressed property. When a person dies intestate, Illinois law requires that all debts and obligations of the deceased must be satisfied before any property may be allocated. Once that is completed, a seemingly endless list of “if-then” possibilities govern how the estate is to be divided.

For example, if a person dies intestate, leaving a spouse and children, then intestacy laws provide that the spouse receives half of the person’s assets, and the children receive the other half. If the deceased has children but no living spouse, the children inherit everything. The same would be true in reverse: with no children, but a surviving spouse, the spouse would inherit the entire estate. When a person dies intestate with no spouse or descendants, the law then looks to parents and siblings of the deceased, and the complexities increase.

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DuPage County estate planning attorney

In the state of Illinois, couples and life partners currently have more options for how they can legally define their relationship than ever before. Same-sex marriage has been recognized throughout the state since 2014 and across the country since 2015. While some couples may wish to have the legal recognition of marriage, others may not. This may be the case in a variety of relationships, regardless of the partners’ genders. What couples who do not wish to marry must understand is that “common law marriage” is not recognized by the state of Illinois. This distinction has a serious impact on the need that unmarried couples in Illinois have for estate planning.

What Is Common Law Marriage?

“Common law marriage” is the term that generally defines the status of two people who agree to marry and live together but have not actually taken the legal steps required to procure a marriage license and register their union with the state. Each state sets its own guidelines for recognizing common law marriages. In Illinois, there is no recognition of such unions. Regardless of how long a couple has been together, Illinois probate law essentially treats unmarried partners as strangers to one another. Neither party is presumed to have any rights to the other’s property upon his or her death.

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Lombard estate planning attorneysThe very idea of estate planning can be frightening for many people, as it is not easy to confront the realization that nobody lives forever. Drafting an estate plan that includes a will, trusts, and other documents requires you to look past the end of your own life. While the difficulties associated with estate planning are understandable, it is critical to have an estate plan. If you were to die without a will or other estate plans, most of your property would probably be subject to the intestate succession laws of Illinois.

What Does “Intestate” Mean?

A particular asset is deemed to be “intestate” if there is no direction specified for how the asset will be disposed of following the owner’s death. Jointly owned property is not usually intestate because the ownership of the joint property will generally transfer to the other owner or owners. Likewise, an investment account that has named beneficiaries or a transfer-on-death clause is not an intestate asset. The named beneficiaries will receive the funds in that account when you die. However, if you are the sole owner of an asset and you have not established legally enforceable instructions on handling the asset upon your death, the asset will be treated as intestate property.

Intestate Succession Laws

The laws governing intestate succession in Illinois are contained in the Illinois Probate Act. Intestate property allocation will depend on your specific circumstances, including your surviving spouse, any children, and other family members. Intestate succession can become extremely complicated, however, as the law provides for a wide variety of possible situations.

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