Legal Question in Wills and Trusts in Illinois

Re: Who gets what?

The Illinois statue in relevant part for someone who has no will is as follows: 755 ILCS 5/2-1

Sec. 2-1. 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 all 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.

So, your father-in-law would be entitled to 1/2 of your mother-in-law's PROBATE estate, subject to claims, and your mother-in-law's children from the first marriage would each be entitled to 1/8 of the probate estate, subject to claims. However, there is a statutory spousal award of $10,000, burial expenses, possible administration expenses, and other claims against the estate that have to be satisfied before splitting up the "residual" probate estate in accordance with the above rule.

If your mother-in-law left everything but her personal effects and one car in joint tenancy, the probate estate is not likely to exceed the claims, expenses, and spousal award. If you think that the car and her personal effects are worth more than the funeral bill and the $10,000 spousal award, you should see an attorney.

On the question of appointing an administrator, that is done only if the probate estate has to be opened. Under Illinois law, an estate of $50,000 can be paid out to claimants, the spouse and other heirs pursuant to a small estate affidavit, and no estate is ever opened and no administrator is ever appointed. Also, even if the estate exceeds the $50,000, no estate is required to be opened if the heirs choose not to do so. But, any interested party (i.e., a creditor or a statutory heir) can undertake the time, effort and expense to do so, so long as the estate is opened under Illinois law in accordance with the probate requirements generally.