Legal Question in Wills and Trusts in Illinois

Without a will, the laws of the State of Illinois provide for the disposition of a decedent's estate. Half to the surviving spouse, half to the children with the offspring of any deceased child to take the deceased child's share. Depending on how the title to the property is held, it is possible that the surviving spouse automatically becomes the sole owner. You should visit an attorney to review your estate planning concerns and share information regarding how title to the property is held.

It depends on the way the title is held. If the person who has advised you had an understanding of that, then the warnings may be important. There are questions to be addressed regardless.

Generally, when couples hold title, it is as Joint Tenants or Tenants by the Entirety. If that is the case, then the property passes to the survivor should one die. That person can then do anything an owner can do, such as keep, sell or lease the property. If kept, the property would pass through that owner's estate.

Otherwise, the property ownership can be as Tenants in Common, which is also the default if nothing else was provided. In that case you each own a half interest. Upon the first to die, that interest would pass through the deceased owner's estate. If there is a will or other estate planning document, then it will pass according to the directions. If not, assuming Illinois, state law provides half to the spouse, half to the children. So, the surviving spouse would own 3/4, with the other 1/4 shared by the decedent's children (and descendents of any deceased child).

Either scenario presents some questions you and your spouse may wish to consider. Some may depend on the nature of your relationship.

In the first scenario, after one dies, that person's heirs can easily lose out if the surviving spouse does not provide for them or if the surviving spouse changes an estate plan that is in place. If there is no will, then it will be the surviving spouse's heirs who will later inherit by the state's intestacy laws. In other words, one owner's beneficiaries would be left out.

The second situation is more the one anticipated by your question. If, for example, your husband passes first, his interest may need to go through probate and then you would become a co-owner with his beneficiaries. That can present serious issues, even a forced sale of the property.

You should have your documents reviewed. A title search may be advised to be sure everything is understood correctly.