Legal Question in Wills and Trusts in Illinois

50% to spouse, 50% to children, after payment of claims and spouses award through probate.

You should begin by looking at the title to the property. How was it deeded. More likely than not, the spouses held title as Tenants by the Entirety or Joint Tenants. Those forms of ownership include survivorship as an attribute, so the surviving Tenant by the Entirety or Joint Tenant would own the property.

If the property was held as Tenants in Common, which is the default if nothing is specified, then the spouses each owned a half interest. The surviving spouse would still have his half interest. The late spouse's interest would pass as part of the estate

In Illinois, without a will, the estate would pass one-half to the surviving spouse and one-half to the children, with the possibility of a spouse's and minor children's award off the top. That is not to say the house has to be divided that way. Depending on the other assets of the estate, it could be that one person would get, for example, cash and cars, while another gets the interest in the house.

Note that other assets may also pass directly to a joint holder or to a beneficiary. For example, bank accounts and vehicle titles are often held jointly and would pass to the survivor. Pension plans, IRAs and insurance policies often have named beneficiaries.

An attorney will review options to help you get the record straight. If the property passes by survivorship, that can be handled by recording certain documents, although it often does not hurt to leave things as they are until the other owner passes. The addressee for the tax bill can be changed.

If there are assets, then the opening of an estate may be necessary or advised, but sometimes there are easier alternatives.