Illinois Probate Act 755 ILCS 5/4-11: Legacy to Deceased Legatee

Between the time that a testator drafts and executes his (or her) will, and when the testator passes away, circumstances related to his family, friends, and estate could change significantly. For example, a named beneficiary might predecease the testator. Whether you are a testator, beneficiary, or executor, it is important to understand what happens to the legacy to a deceased beneficiary. To learn what happens in cases where there is a legacy to deceased legatee, contact an experienced Chicago probate administration lawyer.

If a legatee passes away, the Illinois Probate Act has anti-lapse provisions that require that the executor treat the legacy to a deceased legatee as follows:

• If testator left a gift to a descendant of a descendant, the gift will go to the beneficiary’s descendants per stirpes.
• If the legatee is a group and a member of the group passes away, then the deceased member of the beneficiary group will go to the surviving members of the group. However, if the group member is a descendant of the testator, the gift goes to the beneficiary’s descendants per stirpes.
• If the beneficiary predeceases the testator and neither of the above situations applies, the gift will go to the testator’s residuary estate.

Because the rules related to legacy to a deceased legatee are complicated, discuss the specifics of your situation with an experienced Chicago probate administration lawyer to ensure that you understand what the law requires.

While it is not possible to predict what is going to happen to your beneficiaries after you execute your will, you can take steps to ensure that your will is as up-to-date as possible. After making a will, all testators should review it periodically to make sure it reflects changed circumstances. For example, if a beneficiary passes a way, you may need to update your will with a new beneficiary. Other occasions to review your will include the birth of a child or grandchild or your marriage or divorce. In addition, you should consider reviewing your will if you make a major purchase such as a second home, or if the value of your estate increases or decreases significantly.

Even if you do have any major changes in circumstances, it is a good idea to review your will and other estate documents periodically to confirm that the terms are still consistent with your wishes.

As a probate administration attorney in Chicago will explain, under Illinois law there are specific requirements as to how to change a will. In order to change your will, you must execute a document stating the changes in the same manner as you executed the will. This means that the document must be in writing, you must sign it, and at least two disinterested witnesses must sign it.

1. Posthumous Child: Illinois Probate Act, 755 ILCS 5/2-3
2. Contract for sale: Illinois Probate Act, 755 ILCS 5/4-8
3. Effect of alteration: Illinois Probate Act, 755 ILCS 5/4-9

Unless the testator expressly provides otherwise in his will, (a) if a legacy of a present or future interest is to a descendant of the testator who dies before or after the testator, the descendants of the legatee living when the legacy is to take effect in possession or enjoyment, take per stirpes the estate so bequeathed; (b) if a legacy of a present or future interest is to a class and any member of the class dies before or after the testator, the members of the class living when the legacy is to take effect in possession or enjoyment take the share or shares which the deceased member would have taken if he were then living, except that if the deceased member of the class is a descendant of the testator, the descendants of the deceased member then living shall take per stirpes the share or shares which the deceased member would have taken if he were then living; and (c) except as above provided in (a) and (b), if a legacy lapses by reason of the death of the legatee before the testator, the estate so bequeathed shall be included in and pass as part of the residue under the will, and if the legacy is or becomes part of the residue, the estate so bequeathed shall pass to and be taken by the legatees or those remaining, if any, of the residue in proportions and upon estates corresponding to their respective interests in the residue. The provisions of (a) and (b) do not apply to a future interest which is or becomes indefeasibly vested at the testator's death or at any time thereafter before it takes effect in possession or enjoyment.

The best way to ensure that probate of your estate is not delayed by questions, complications and confusion related to deceased beneficiaries is to regularly review your will and update it if circumstances have changed. The will attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates have years of experience representing individuals, executors, beneficiaries, and heirs in estate matters. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.