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Contesting an Heirship in Illinois

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
January 21, 2020

In this article, we will explain contesting an heirship in Illinois. Our Illinois lawyers will answer:

  • What is heirship in Illinois?
  • Who is an heir-at-law in Illinois?
  • What is an affidavit of heirship in Illinois?
  • Who can contest an heirship in Illinois?
  • Are there assets an heirship cannot touch?

What Is Heirship in Illinois?

Heirship is the right of inheritance. In certain situations, heirship must be proven in Illinois by an affidavit to settle an estate, especially in cases where a will wasn’t executed by a decedent.

Is an Heir the Same as a Beneficiary in Illinois?

No. Though the terms are often used interchangeably, their legal definitions are much different. A beneficiary is a party who inherits according to the terms of a valid will. An heir inherits based on the rules of descent and distribution. It’s possible for a beneficiary to not be related by blood to a decedent. But an heir-at-law will almost always have a familiar relation to the decedent (if not through blood then through legal processes like adoption). 

What is an Affidavit of Heirship in Illinois?

An affidavit of heirship is a written statement establishing the right of inheritance. To be valid, it must be signed under oath and witnessed by a third party. When contesting an heirship, an affidavit can serve as evidence by establishing: 

  • Who is an heir to an estate
  • Property within an estate
  • How such property should be dispersed

When Is an Affidavit of Heirship Required in Illinois?

As already mentioned, an affidavit of heirship is helpful when someone dies before executing a will. When someone passes before establishing a will, or a will cannot be located or validated, the estate must enter probate. A court will decide how to settle a decedent’s debts and how to distribute their property amongst their heirs. See our article on how Illinois estates are divided without a will

Probate can be an expensive and lengthy process. An affidavit of heirship can assist the probate court and in some cases, help an estate avoid probate all together.

How to Contest an Heirship in Illinois

If an individual has been left out of a will but would otherwise have collected an inheritance under intestate laws, they may contest. But if a will does not exist to contest, an affidavit of heirship proving an individual’s legal right to inheritance will be required by the probate court.

For example, an elderly man passes away. Much of his family is estranged, but a grandchild hears about the death. He submits an affidavit of heirship in hopes of collecting his grandfather’s estate. What he doesn’t realize is that his aunt is still living and once she hears of her father’s passing, files her own affidavit of heirship. By intestate laws, the estate is awarded to the man’s daughter.

Are There Assets an Affidavit of Heirship Cannot Touch?

In most cases, intestate succession laws or an affidavit heirship only affect assets that can be passed through a will. There are several types of assets that an heirship cannot claim, including:

  • Property transferred to a living trust
  • Retirement account funds
  • Real estate held by a transfer-on-death deed

Life insurance proceeds

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How to Contest an Heirship

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