What are the rights of children in probate cases? What are the rights of minor children when there is no surviving spouse? Attorney Kevin O'Flaherty explains Surviving Children Rights in Probate in this episode of Learn About Law. Have any questions that weren't answered here? Let us know in the comment section! Subscribe: https://www.youtube.com/channel/UCY4QhGg-zwgUIthoK3EdyjA
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In this article, we will explain the rights of a surviving child in Illinois probate.  Similar to the award a surviving spouse receives upon the death of his or her spouse, children also have rights and are entitled to certain awards when a parent dies under Illinois law.   A surviving child’s rights depend on whether the child is a minor or is an adult with a disability, whether the deceased individual is survived by a spouse, and whether the child lives with the surviving spouse.  We will explain the surviving child’s rights in each of these circumstances.

In this article, we will explain the rights of a surviving child in Illinois probate. Similar to the award a surviving spouse receives upon the death of their spouse, children also have rights. They are entitled to specific awards when a parent dies under Illinois law. A surviving child's rights depend on whether the child is a minor or is an adult with a disability, whether a spouse survives the deceased individual, and whether the child lives with the surviving spouse. We will explain the surviving child's rights in each of these circumstances.

Surviving Child's Rights if There is a Surviving Spouse and Child Lives With the Spouse

Article XV of the Illinois Probate Act states that a surviving spouse is to automatically be awarded at least $20,000 to cover support for the nine-month period after the decedent's death. Additionally, the spouse will receive another $10,000 per dependent child living with them. This includes both minor children and adult children residing with the spouse. 

 Rights of Minor Children When there is No Surviving Spouse or When the Children Do Not Live with a Surviving Spouse

If the deceased individual leaves behind minor children who do not live with a surviving spouse, or if there isn't a surviving spouse, the minor or adult child is entitled to receive a "child's award" of no less than $10,000. Similar to the surviving spouse's award, the court may award a higher amount based on the child's needs or the lifestyle they were accustomed to living when the parent was alive.

Surviving children have unique rights if their parent dies and there is not a surviving spouse. For example, each child would receive a minimum of $10,000 in an award, plus $20,000 to be divided equally among the siblings. Also, children may elect to receive their award in "goods and chattels," which are tangible, personal property of the decedent. The child must submit their request to receive the "goods and chattels" in writing within 30 days of being notified of the award. 

The child in question must have been a minor at the date of death to receive the child's award. Like the surviving spouse's award, the child's award takes precedence over the payment of the creditors of the estate. It will typically be paid for the child's benefit to the child's caretaker or some other person as directed by the court.

Surviving Child's Award for Adult Children With Disabilities Not Residing With a Surviving Spouse

Thus far, we have discussed the child's award in the context of minor children. However, an adult child with a disability who did not live with a surviving spouse at the time of the deceased individual's death is also entitled to an award. To be eligible for this award, the adult child must have been financially dependent on the deceased individual at the time of the deceased individual's death and must also be "likely to become a public charge." 

Like the award for minor children, the court may award an amount necessary to provide for the adult child's needs. In the case of disabled adults, the award is to be consistent with the financial support that the disabled adult received from the deceased individual during the deceased individual's lifetime. However, the minimum award for a disabled adult child is $5,000, which differs from the $10,000.00 minimum for minor children. 

To claim this award, adult children with disabilities (or someone on their behalf) must provide written notice to the estate's representative that they meet the requirements to be entitled to the award. This notice is time sensitive, meaning that failure to provide the notice by the deadline provided by the probate act will bar the adult child's claim to the award.  

Children's Awards in Probate When there is a Will

A parent may leave whatever property they wish and see fit to the child in a will. If the parent created the will before the child's birth, the child is still entitled to a portion of the parent's estate, which means that a child doesn't have to be named explicitly within a will to have their inheritance rights. The opposite can occur; if a parent lists the child's name in the will and explicitly states they are to be disinherited, they will not receive what they'd otherwise be entitled to from the estate.

Surviving Children's Rights in Intestacy

If a parent dies without having created a will, the estate is considered intestate and is subjected to Illinois intestate succession laws. According to these laws, if a decedent dies without a will, but has a surviving spouse and surviving children, half of the estate is to be divided among the children. The surviving children inherit the entire estate if the decedent does not have a surviving spouse. The children's award discussed above supersedes the state intestacy laws. 

Posted 
November 16, 2020
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