Legal Question in Wills and Trusts in Illinois

Re: Missing Will

You shouldn't lose everything to the state. If the original can't be located, in some cases a copy can be probated. If not, then the estate would pass "intestate" according to state law. In this case, assuming no surviving spouse, it would be equally among all children (and descendants of any deceased child). A probate estate would probably need to be opened in court.

You should consider consulting with a local probate attorney.

Re: Missing Will

Presuming the only remaining heirs are you and your sister, you need to file for an administration of your mother's estate. An administration is a probate proceeding where there is no Will (what they call a person's estate as being "intestate", or no Will). The closest surviving heirs are entitled to be appointed, and, you will need to verify that your father is either deceased (by presenting a valid death certificate) or your parents were divorced (a copy of the Divorce Judgment will be needed). This is more costly than a straight probate where there is a Will, as you will also need to be bonded. Your sister, while entitled to be appointed along with you, can renounce her right of appointment, so you can serve alone. All necessary forms can be obtained from the Surrogate's Office in the County where your mother resided at her date of death. Once appointed, you have the same rights as if you were named in a Will. The difference is that your sister will be automatically entitled to a share of the estate, unless she disclaims her interest in your favor. If she has children, they also need to disclaim their potential interest in the estate. In short, this is a valid, but complicated, procedure, and you may need an attorney to assist you, although you can do it yourself, with the help of the Surrogate. I suggest you get a stay of any foreclosure proceeding against the house, if that is what you mean by losing the house to the state. If your concern is merely that nothing has happened because you could not find the original Will and fear the state will take the property, the administration procedure prevents that from happening. This is a response to an Internet question and the reply is not intended to be legal advice or resulting in an attorney-client relationship. Missing facts could produce a different response.

Re: Missing Will

Depending upon how the house was titled, and if your sister and you are the sole heirs under intestacy, you and your sister, as the heirs of your mother could prepare and record a deed granting title to you.

As far as the state taking the house, the only way I could see that taking place is if your mother was in a nursing home paid by Medicaid at any point during the last five years of her life.

This is an answer to an internet question and does not constitute legal advice. Missing facts could alter my response. No attorney-client relationship is created by this answer.