Tag: testamentary

What Happens If One of Your Heirs Dies Before You?

If one of your heirs listed in your will happens to die before you, your estate gets distributed differently. It is a good idea – for your own peace of mind – to figure out who would receive the inheritance instead. Also, you should be aware of the effect that the language in your will could have on estate distribution.

Figuring Out Who Inherits When an Heir Dies Before the Testator

If an heir listed in your will dies before you, ideally you would change your will to take that person out. But not everyone has the chance to make that change. Sometimes, the testator does not even know that the heir died. When the will leaves a gift to a deceased person, there are a few options for what happens to the gift.

Often, the will’s language explains that the gift will go to someone else (a successor). The will may use language like “to the survivor” or “if John does not survive me, then to Jane”. It is important to be very clear about the language you use to describe who inherits if an heir predeceases you. In one recent case, family members got into a dispute over the meaning of the phrase “to share and share alike in equal shares or to the survivor or survivors of them.”

What If the Will Doesn’t Mention a Successor?

If the will is silent about who inherits a gift if the heir dies, it matters whether the gift is to a descendant or to a group of people. If the gift is to a single descendant (child, grandchild, etc.) of the testator, then the descendants of the heir who are alive at the time will receive the gift “per stirpes” (each branch of the family receives an equal share of the gift). In other words, if the deceased heir was the testator’s sister and she had one living child and two living grandchildren from another deceased child, then the child gets 50% of the gift and each grandchild gets 25%.

If the gift is to a group of people, and one of the people dies, then the rest of the group receives the portion of the gift that the deceased heir would have received. However, if the deceased heir is the testator’s descendant, then the rule described above for a single descendant applies.

Finally, if neither of the two situations described above apply, then the gift becomes part of the residue of the estate (anything left over after making specific gifts). Whoever inherits the residue will inherit the gift.

As you can see, determining who inherits if an heir predeceases the testator is extremely complicated. It is best to include language in your will specifying what happens if an heir dies.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Does Divorce Invalidate Gifts to Your Ex-Spouse in Your Will?

When you get divorced, you may wonder if the divorce decree invalidates gifts to your ex-spouse made in your will. In Illinois, a divorce nullifies any language in your will that makes your ex-spouse an heir.

Effect of Divorce on Gifts

The effect of divorce on gifts varies somewhat from state to state. The type of gift matters too. In Illinois, any gifts made to an ex-spouse in a will signed before the divorce cannot be enforced. The ex-spouse will not inherit no matter what.

It does not matter how specific the will’s language is – all gifts to ex-spouses are not valid. It also does not matter when the will was made. In one legal case, the testator signed his will long before his marriage when he decided to leave his estate to his friend. Later, he married the friend, and then they got divorced. The court found that his gift to his ex-wife was not valid, regardless of the fact that he made the will before the marriage and before the divorce.

However, the rule is different for life insurance policies in Illinois. There is no Illinois law that removes your ex-spouse as beneficiary of your life insurance policies. The reasoning is that if you wanted to change the beneficiary, you could have done so. As a result, you must review your life insurance after divorce. If your ex-spouse is the beneficiary and you do not want him or her to receive the proceeds, then update your beneficiary designation.

Updating Your Will After Divorce

Because of the effect of divorce on testamentary gifts in Illinois, you must update your will after a divorce. If you do not update the will, then the probate court will simply disregard a gift to your ex-spouse and distribute the estate to your other heirs. This may have a result that you did not intend. Updating your will is the best way to have peace of mind that your wishes will be carried out.

If you still want to leave property to your ex-spouse (perhaps you are on friendly terms, or he or she needs support), then you can. First, make sure the will is dated after the date of the final divorce decree. Also, you should consult a wills and trusts lawyer to ensure that the will includes appropriate language about the gift to your ex-spouse.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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