Illinois Probate Act 755 ILCS 5/2-4: Adopted Child

It is very important to parents that they are able to leave property to their children. It is a way of showing love, ensuring that property stay within the family, and helping children build their own legacies. While there are a variety of ways to pass on property to children and other loved ones, a will is the most common way. One of the biggest advantages of having a will is that you are able to state clearly who gets your property after you pass away. However, as experience Chicago intestate succession attorneys at the Law Offices of Stephen Bilkis & Associates, we have seen far too many cases where decedents failed to make a will and as a result, the individuals who he (or she) wanted to receive property did not. Lack of a will can leave questions related to the inheritance rights of adopted children and other children who are not the natural children of the testator such as stepchildren, foster children, and children raised in a family but not formally adopted.

If you pass away without a will, under Illinois Probate Act, this is what will happen to your property.

• Children, but no surviving spouse: Your children will inherit your entire estate.
• Surviving spouse, but no descendants: Your surviving spouse will inherit your entire estate
• Surviving spouse and descendants: Your surviving spouse will inherit ½ of your estate and your descendants will inherit the other ½ of your estate

There are additional rules as to who would receive your property if you do not have a spouse are descendants. As a Chicago intestate succession lawyer will explain, an important aspect of Illinois probate law to understand is, that except for a surviving spouse, only you those who are your blood relatives will inherit. Thus, if you want to leave property to friends, in-laws, or anyone else, you must make a will.

An important legal tenet of adopting a child is that from a legal standpoint an adopted child is treated the same as a biological child. In other words, the child has the same rights with respect to the adoptive parents as a biological child has, and an adoptive parent has the same right as a biological parent with respect to the adopted child. This principle applies to the right to inherit. Under the “adopted child” provisions of the Illinois Probate Act, an adopted child is considered a descendent of s right to inherit from the adopting parents, and is entitled on a proportionate share of the adopting parent’s estate. However, the adopted child is not considered a descendant of his natural parents and would not be entitled to a proportionate share of the natural parent’s estate. However, the situation may be more complicated if the adopted child is also a blood relative of the adopting parents. Thus, if you have questions about the rights of an adopted child with respect to inheriting from natural or adopted relatives, discuss the specifics of your case with an experienced intestate succession lawyer in Chicago.

It is important to understand to understand for an adopted child to be considered an heir, the child must have been legally adopted. Thus, foster children and stepchildren who were never legally adopted are not legal heirs.

Questions concerning whether an adopted child would be entitled to inherit can easily be addressed by the creating a will and specifically leaving the child a portion of your estate.

1. Descent and distribution: Illinois Probate Act, 755 ILCS 5/2-1
2. Children born out of wedlock: Illinois Probate Act, 755 ILCS 5/2-2
3. Posthumous child: Illinois Probate Act, 755 ILCS 5/2-3

(a) An adopted child is a descendant of the adopting parent for purposes of inheritance from the adopting parent and from the lineal and collateral kindred of the adopting parent and for the purpose of determining the property rights of any person under any instrument, unless the adopted child is adopted after attaining the age of 18 years and the child never resided with the adopting parent before attaining the age of 18 years, in which case the adopted child is a child of the adopting parent but is not a descendant of the adopting parent for the purposes of inheriting from the lineal or collateral kindred of the adopting parent. An adopted child and the descendants of the child who is related to a decedent through more than one line of relationship shall be entitled only to the share based on the relationship which entitles the child or descendant to the largest share. The share to which the child or descendant is not entitled shall be distributed in the same manner as if the child or descendant never existed. For purposes of inheritance, the changes made by this amendatory Act of 1997 apply to all decedents who die on or after January 1, 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1997 apply to all instruments executed on or after January 1, 1998.

(b) An adopting parent and the lineal and collateral kindred of the adopting parent shall inherit property from an adopted child to the exclusion of the natural parent and the lineal and collateral kindred of the natural parent in the same manner as though the adopted child were a natural child of the adopting parent, except that the natural parent and the lineal or collateral kindred of the natural parent shall take from the child and the child's kindred the property that the child has taken from or through the natural parent or the lineal or collateral kindred of the natural parent by gift, by will or under intestate laws.

(c) For purposes of inheritance from the child and his or her kindred (1) the person who at the time of the adoption is the spouse of an adopting parent is an adopting parent and (2) a child is adopted when the child has been or is declared by any court to have been adopted or has been or is declared or assumed to be the adopted child of the testator or grantor in any instrument bequeathing or giving property to the child.

(d) For purposes of inheritance from or through a natural parent and for determining the property rights of any person under any instrument, an adopted child is not a child of a natural parent, nor is the child a descendant of a natural parent or of any lineal or collateral kindred of a natural parent, unless one or more of the following conditions apply:

(1) The child is adopted by a descendant or a spouse of a descendant of a great-grandparent of the child, in which case the adopted child is a child of both natural parents.

(2) A natural parent of the adopted child died before the child was adopted, in which case the adopted child is a child of that deceased parent and an heir of the lineal and collateral kindred of that deceased parent.

(3) The contrary intent is demonstrated by the terms of the instrument by clear and convincing evidence. An heir of an adopted child who, by reason of this subsection (d), is not a child of a natural parent is also not an heir of that natural parent or of the lineal or collateral kindred of that natural parent. A fiduciary who has actual knowledge that a person has been adopted, but who has no actual knowledge that any of paragraphs (1), (2), or (3) of this subsection apply to the adoption, shall have no liability for any action taken or omitted in good faith on the assumption that the person is not a descendant or heir of the natural parent. The preceding sentence is intended to affect only the liability of the fiduciary and shall not affect the property rights of any person.

For purposes of inheritance, the changes made by this amendatory Act of 1997 apply to all decedents who die on or after January 1, 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1997 apply to all instruments executed on or after January 1, 1998.

(e) For the purpose of determining the property rights of any person under any instrument executed on or after September 1, 1955, an adopted child is deemed a child born to the adopting parent unless the contrary intent is demonstrated by the terms of the instrument by clear and convincing evidence.

(f) After September 30, 1989, a child adopted at any time before or after that date is deemed a child born to the adopting parent for the purpose of determining the property rights of any person under any instrument executed before September 1, 1955, unless one or more of the following conditions applies:

(1) The intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence.

(2) An adopting parent of an adopted child, in the belief that the adopted child would not take property under an instrument executed before September 1, 1955, acted to substantially benefit such adopted child when compared to the benefits conferred by such parent on the child or children born to the adopting parent. For purposes of this paragraph:

(i) "Acted" means that the adopting parent made one or more gifts during life requiring the filing of a federal gift tax return or at death (including gifts which take effect at death), or exercised or failed to exercise powers of appointment or other legal rights, or acted or failed to act in any other way.

(ii) Any action which substantially benefits the adopted child shall be presumed to have been made in such a belief unless a contrary intent is demonstrated by clear and convincing evidence.

(g) No fiduciary or other person shall be liable to any other person for any action taken or benefit received prior to October 1, 1989, under any instrument executed before September 1, 1955, that was based on a good faith interpretation of Illinois law regarding the right of adopted children to take property under such an instrument.

(h) No fiduciary under any instrument executed before September 1, 1955, shall have any obligation to determine whether any adopted child has become a taker under such instrument due to the application of subsection (f) unless such fiduciary has received, on or before the "notice date", as defined herein, written evidence that such adopted child has become a taker of property. A fiduciary who has received such written evidence shall determine in good faith whether or not any of the conditions specified in subsection (f) exists but shall have no obligation to inquire further into whether such adopted child is a taker of property pursuant to such subsection. Such written evidence shall include a sworn statement by the adopted child or his or her parent or guardian that such child is adopted and to the best of the knowledge and belief of such adopted child or such parent or guardian, none of the conditions specified in such subsection exists. The "notice date" shall be the later of February 1, 1990, or the expiration of 90 days after the date on which the adopted child becomes a taker of property pursuant to the terms of any instrument executed before September 1, 1955.

(i) A fiduciary shall advise all persons known to him or her to be subject to these provisions of the existence of the right to commence a judicial proceeding to prevent the adopted child from being a taker of property under the instrument.

If you have questions related to how to ensure that your adopted children are ensured to receive your property after you pass away, discuss your concerns with an experienced intestate succession attorney serving Chicago. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience representing clients in estate planning matters including drafting wills and other estate documents. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.