Illinois Probate Act 755 ILCS 5/4-10: Effect of Child Born After Will

After creating a will, it is important that you review it regularly and update it, particularly when you experience significant life events. One such life event is the birth of a child. Recognizing that parents do not always update their wills after children are born, Illinois made provisions to ensure that no children are inadvertently left out of parents’ wills. Under the Illinois Probate Act children born after will are automatically entitled to a proportionate share of the parents’ estate. Nonetheless, when there is a life event such as the birth of a child, marriage, death, or divorce, it is still important to review your will and other estate documents to ensure that they still reflect your wishes for how your estate should be distributed upon your death. If you experienced a life event and have not updated your will, contact an experienced Chicago will attorney who will review your will and ensure that it is updated to reflect your current wishes for the distribution of your estate.

Under Illinois Probate Act, a child who is born after the will of a parent was executed, is entitled to inherit the share of the estate that he or she would have inherited in the absence of a will. The Illinois rules of intestate succession are very generous to children. Children are entitled to inherit 50% of the estate of a parent, if the parent dies leaving a surviving spouse. In the absence of a surviving spouse, the decedent’s children are entitled to receive 100% of the estate in equal shares.

The only exception to this rule would be if the testator specifically added language to his will of his intention to disinheriting the child.

Mitch and his wife Kathy have 3 boys. They both made wills leaving 50% of their estates to the boys, divided equally. Ten years after they created the wills, they had a fourth child, Cassie. Ten years after the Cassie was born Kathy passed away. Upon reviewing her will during probate, it was determined that Kathy never updated her will after the birth of Cassie. However, after consulting with a Chicago will attorney, the executor of Kathy’s estate concluded that Cassie was entitled to a proportionate share of Kathy’s estate. Thus, instead of 50% of her estate being divided among her 3 sons, it would be divided among all 4 of her kids.

While the Probate Act makes provisions for children born after a will was created, and for limited other changed circumstances, it is up to the testator to update her (or his) will to reflect changed circumstances. In addition to reviewing your will and other estate documents after the birth of a child, it is also a good idea to review estate documents following a marriage, divorce, or death in the family. In addition, if you make a major purchase such as a second house, or your finances change significantly, review your will in case you want to change any of the bequests. Even in the absence of a life event, it is a good idea to periodically review your estate documents with a will attorney in Chicago.

Changing your will requires executing a document with the changes. The document must e signed by the testator and must be witnessed by at least two people. If you decide to revoke your entire will and execute a new one, for the revocation to be effective you must execute a document expressing your intention to revoke your will. Or, you physically destroy the will document. If you revoke your will it is important that you quickly execute a new one in order to reduce the risk of intestacy.

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
4. Legacy to a deceased legatee: Illinois Probate Act, 755 ILCS 5/4-11

Unless provision is made in the will for a child of the testator born after the will is executed or unless it appears by the will that it was the intention of the testator to disinherit the child, the child is entitled to receive the portion of the estate to which he would be entitled if the testator died intestate and all legacies shall abate proportionately therefor.

Having a will that is out-of-date may result in your estate being distributed in a manner that does not reflect your wishes. To avoid this problem, it is important that you review your will, trust, and other estate documents regularly and update them when necessary based on changes in your family, changes in your estate, and changes in your preferences for any other reason. 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.