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Illinois Probate Act 755 ILCS 5/5-3: Power to Ascertain and Declare Heirship

If someone passes away without a will, the probate court will appoint an estate administrator who will wind up the decedent’s affairs and distribute his (or her) assets according to Illinois’ rules related to intestate succession. If the decedent does not have any close relatives such as a surviving spouse, children, siblings, or parents, there may be questions as to whether someone who steps forward claiming to be an heir is indeed an heir. Before distributing assets from the estate to a claimant, the court may require the claimant to present proof that he or she is an heir. If you have questions related to the court’s power to ascertain and declare heirship, contact an experienced Chicago kinship hearing attorney who will explain to you the process of proving heirship.

Intestate Succession

A will is the best way to make sure that your property goes to the beneficiaries of your choose. In your will you can leave property to family members, including in-laws, friends, and employees. You can even leave property to organizations and institutions. Unfortunately, not everyone creates a will. In the absence of a will your property will go to your heirs according to Article II of the Illinois Probate Act.

To sum up, your property will go to your surviving spouse and your descendants. Your descendants are you children, your grandchildren, you great-grandchildren, and so forth. In the absence of a surviving spouse or descendants, your property will go to your parents and siblings, and your siblings’ descendants. In the absence of those relatives, your property will go to other blood relatives according to an order of priority stated in the Probate Act.


As a Chicago kinship hearing attorney will explain, there are instances in which the estate administrator has a difficult time locating an heir for a decedent who passed away intestate. If someone does come forward claiming heirship, the court my require proof of heirship. Proof can be an affidavit that states facts proving heirship, or a narrative with facts that prove heirship.

Avoiding Intestacy Problems

The best way to avoid problems associated with intestacy is to make a will. Making a will is the best way to make sure that beneficiaries of your choosing will receive your property, and that probate will not be complicated by issues related to finding missing heirs and proving heirship. In addition, as part of your estate planning strategy it is a good idea to periodically review your will and other estate documents to make sure that they still reflect your wishes. For more information about how to update a will, revoke a will, or write a new will, contact a kinship hearing attorney in Chicago.

Related Statutory Provisions
  1. Rules of 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
  4. Adopted child: Illinois Probate Act, 755 ILCS 5/2-4
Illinois Probate Act, Section 5-3- Power to Ascertain and Declare Heirship

(a) The court may ascertain and declare the heirship of any decedent to be entered of record in the court at any time during the administration of the estate without further notice or, if there is no grant of administration, upon such notice and in such manner as the court directs.

(b) The ascertainment of heirship may be made from (1) an affidavit of any person stating the facts from which the heirship of the decedent can be ascertained, which affidavit shall be signed and sworn to or affirmed before any notary public or judge of any court of record in the United States or any of its possessions or territories and certified by the clerk thereof, or before any United States consul, vice-consul, consular agent, secretary of legation or commissioned officer in active service of the United States, within or without the United States, or (2) from evidence either in narrative form or by questions and answers which are reduced to writing and certified by the court declaring the heirship. The seal of office of any notary public, United States consul, vice-consul, consular agent or secretary of legation and the designation of the name, rank and branch of service of any commissioned officer in active service of the armed forces of the United States shall be sufficient evidence of his identity and official character. The affidavit or transcript of evidence shall be filed by the clerk of the court declaring the heirship and remain as a part of the files in the cause.

(c) An order of the court declaring heirship is prima facie evidence of the heirship, but any other legal method of proving heirship may be resorted to by any party interested therein in any place or court where the question may arise.

(d) For purposes of this section the court may presume, in the absence of any evidence to the contrary, that the decedent and any person through whom heirship is traced was not the mother or father of any child born out of wedlock and, if the decedent or the person was a male, that no child born out of wedlock was filiated to or acknowledged or legitimated by the decedent or the person.

Contact the Law Offices of Stephen Bilkis & Associates

Although the probate court has the power to ascertain and declare heirship, a better strategy would be to ensure that your estate does not face issues related to ascertain heirship. The kinship hearing attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates have years of experience representing individuals, executors, beneficiaries, and heirs in estate matters related to drafting wills, probating wills, and estate litigation. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.

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