A dead person's property passes to his or her heirs, unless there is a will or other things which specify that it passes to someone else. The other things would be beneficiary designations, joint tenancies, pay on death designations and similar devices which specify who gets property on death. The property passing to heirs also is limited to property in the dead person's probate estate. This excludes assets that are in a trust that says who gets the property after death.

Heirs are determined as of the date of death. For instance assume X and Y are married and have no children together. Assume X has children by a prior marriage. X dies and Y survives, but then Y dies 2 days later. The heirs of X are Y and X's children. Half of X's property goes to Y and through Y's estate to Y's heirs. This happens even though two days after X's death the only survivors of X alive are X's children.

Each state has its own rules for determining heirs. In Illinois the rules apply to the property of a resident decedent and the Illinois real estate of a non-resident decedent.

The Illinois rules are called rules of descent and distribution. They are:

Rules of descent and distribution. The intestate real and personal estate of a resident decedent and the intestate real estate in this State of a nonresident decedent, after just claims against his estate are fully paid, descends and shall be distributed as follows:

(a) If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent's descendants per stirpes.

(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent's descendants per stirpes.

(c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.

(d) If there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living.

(e) If there is no surviving spouse, descendant, parent, brother, sister or descendant of a brother or sister of the decedent, but a grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent's maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent's paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal grandparent or descendant of a paternal grandparent, but a maternal grandparent or descendant of a maternal grandparent of the decedent: the entire estate of the decedent's maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving maternal grandparent or descendant of a maternal grandparent, but a paternal grandparent or descendant of a paternal grandparent of the decedent: the entire estate to the decedent's paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes.

(f) If there is no surviving spouse, descendant, parent, brother, sister, descendant of a brother or sister or grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent's maternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent's paternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal great-grandparent or descendant of a paternal great-grandparent but a maternal great-grandparent or descendant of a maternal great- grandparent of the decedent: the entire estate to the decedent's maternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving maternal great-grandparent or descendant of a maternal great- grandparent, but a paternal great-grandparent or descendant of a paternal great-grandparent of decedent: the entire estate to the decedent's paternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes.

(g) If there is no surviving spouse, descendant, parent, brother, sister, descendant of a brother or sister, grandparent, descendant of a grandparent, great-grandparent or descendant of a great- grandparent of the decedent: the entire estate in equal parts to the nearest kindred of the decedent in equal degree (computing by the rules of the civil law) and withouit representation.

(h) If there is no surviving spouse and no known kindred of the decedent; the real estate escheats to the county in which it is located; the personal estate physically located within this State and the personal estate physically located or held outside this State which is the subject of ancillary administration of an estate being administered within this State escheats to the county of which the decedent was a resident, or, if the decedent was not a resident of this State, to the county in which it is located; all other personal property of the decedent of every class and character, wherever situate, or the proceeds thereof, shall escheat to this State and be delivered to the State Treasurer pursuant to the Uniform Disposition of Unclaimed Property Act.

In no case is there any distinction between the kindred of the whole and half blood.

There are special rules for illegitimate children, both as to inheritance from them and inheritance by them. Generally an illegitimate child is an heir of his or her mother and her ancestors. Whether or not the illegitimate child is an heir of the father and the father's ancestors depends on whether the decedent father has acknowledged paternity or whether a court has adjudged the decedent to be the father.

There are also special rules for adopted children. Among other things, an adopted child is treated as descendant of the adopting parent. If the child is adopted after reaching 18 and never lived with the adopting parent before then, the child is an heir of the adopting parent, but is not treated as a descendant when it comes to inheriting from the lineal or collateral kindred (ancestors, siblings, cousins, etc.) of the adopting parent.

Donald M. Thompson * 55 W. Monroe #3950; Chicago, IL 60603 - Illinois Probate Lawyers
Ph: 312-782-0844 * Fax: 312-201-1436 * Email: donthompsonlaw@sbcglobal.net