In this article, we explain how intestate inheritance works when illegitimate children are involved. We will answer the following questions:
The Illinois Probate Act describes a “person who was born out of wedlock whose parents intermarry and who is acknowledged by the father as the father’s child is the lawful child of the father.” What this means is that for the sake of inheritance laws in Illinois, a child who is proven to be that of the father’s will be treated the same as a legitimate child. The methods for proving and/or acknowledging paternity in Illinois are numerous and outside the scope of this article. For a more in-depth look into Illinois paternity law check out our article Illinois Paternity Law Explained.
When someone does without a will their inheritance status is referred to as “intestate.” The Illinois Probate Act provides statutes governing intestacy laws that determine who gets what from a decedent’s estate in the absence of a will or trust. As a reminder, intestate laws apply only to probate property. Probate property is distributed by a court process and includes assets owned solely by the deceased individual with no designated beneficiary, such as personal property, bank accounts, and investments. Items that pass through probate and straight to named beneficiaries typically include life insurance policies, payable on death accounts, retirement accounts, and property held in joint tenancy. In Illinois the intestate laws are such:
The probate act refers to the parents of the illegitimate child as “eligible parents.” Three factors must be considered when determining an eligible parent under the Illinois Probate Act:
If one or more of these factors was not met during the child’s lifetime or a good faith attempt was not made by the parent to develop a relationship with the child then the court may not consider the parent “eligible” under the Illinois Probate Act, effectively treating him or her as having predeceased the decedent and barring him or her from receiving any inheritance from the deceased illegitimate child.
If both parents are considered eligible under the Illinois Probate Act the intestate inheritance law in Illinois for the death of an illegitimate child is as follows:
As of September 12th, 1978, an illegitimate child can inherit from both parents in the same fashion as a legitimate child. However, in order for the child to inherit from his or her father and paternal ancestors one of the following two conditions must be met:
The statute of limitations that normally applies under the Illinois Parentage Act requiring paternity suits be brought against the alleged father within two years of the child reaching age 18 does not apply in probate proceedings. This means that paternity can be established anytime during a father’s lifetime and after his death during the probate proceedings to include an illegitimate child as legitimate under the Illinois Probate Act. This is especially important in reference to wills and trusts that list “children” as beneficiaries and not specific individuals.
If you have questions about paternity law, inheritance, or probate proceedings don’t hesitate to give us a call at 630-324-6666 and speak with one of our qualified family attorneys.
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