Legal Question in Wills and Trusts in Illinois

Re: Wills

The first question is how the property is held. Regardless of what the will says, property held in joint tenancy with right of survivorship(common for spouses) will go 100% to the surviving spouse, regardless of the will. Other arrangements also will pass property at death without regard to the terms of a will, for example, a valid beneficiary designation for life insurance, IRAs or retirement accounts, Payable on Death designations, retirement plans subject to ERISA (100% to spouse unless the spouse consents in writing to another beneficiary designation) and similar arrangements.

And, if one spouse dies and the surviving spouse has a will with the same terms as your question, at the surviving spouse's death, 100% of the property would go to the children specified in the will, because there is no living spouse to inherit. Under Illinois law, even if the spouse is entirely cut out from the will, there is a right of renounciation that guarantees the spouse 1/3 of the probate estate if exercised by the surviving spouse within 9 months of the date of death.

In sum, the will is only part of the story about who will inherit what when a spouse dies. You should consult with an estate planning attorney to insure that your wishes are carried out after your death. You may need modifications to your will, to your account beneficiary designations, etc., or you may need a living trust.

Re: Wills

Regardless of whether there is a new will or not, a person dying in Illinois with children and a surviving spouse, the surviving spouse receives 50% of the assets of the deceased spouse. In other words a deceased spouse can not disinherit the surviving spouse.