Heirs And Omissions – Part I

There is a lot of misinformation floating around about heirs and legatees. Here is an example:

Mary called. Her grandfather, Otto, had died without a will. Otto had two sons, Frank and Robert. Robert died before Otto leaving two children, Mary and John. Frank was told by his attorney that because Robert died before Otto, Frank was the only heir. That was obviously wrong. I had to first convince Frank’s attorney that while Frank had the right to act as administrator, he took only 50% of the estate. The attorney then had to tell Frank that his previous advice was wrong.

A recent wrongful death case addressed the issue of who are the “next of kin.” The decedent’s brothers and sisters maintained that they were the only next of kin to the exclusion of children of their deceased siblings. The Court reaffirmed its prior position that “next of kin” for purposes of recovering for wrongful death are the same as “heirs” as determined under the Probate Act. Thus, the children of the decedent’s deceased siblings were also next of kin and would share in the recovery.

Determining heirs is critical for a number of reasons apart from wrongful death actions. If a decedent dies intestate, the heirs receive the net estate. Even in a testate estate, heirs have a right to contest the will. A bequest without an ultimate taker may end up passing by intestacy to the heirs.

In this article and the two to follow, I will address a number of issues regarding heirs and legatees. I hope to help you to find the correct heirs and avoid any omissions.


Heirs are determined by §2-1 of the Probate Act. If a decedent leaves a spouse, the spouse is always an heir. If a decedent leaves children or other descendants, they are always heirs. Only if there are no spouse and no descendants do parents, siblings, or other more distant relatives become heirs. Rule: When determining heirs, start from the common ancestor and move down each line of descent until you reach living persons or no living persons. You must account for all marriages of each person in the chain and all children born in or out of those marriages. In the example above, the common ancestor was Otto. Otto had two children. Frank was an heir to one-half of Otto’s estate. Since Robert died, we proceed further down his chain of descent. Robert’s heirs were Mary and John, each of whom would be entitled to one-fourth of the estate. If Mary had also died before Otto, her children, if any, would divide her one-fourth, and if she had none, John would take all of Frank’s one-half.

Where a decedent leaves no spouse, descendants, parents, siblings, or siblings’ descendants, the heirship becomes more complicated. You need to do separate tracings for the paternal and maternal sides. You start with the decedent’s paternal grandparents and trace all of the marriages and children of each grandparent down the line until you end up with living heirs or no heirs in each line of descent. Heirs may turn out to be the decedent’s aunts or uncles, first cousins, first cousins once removed, etc. 50% of the estate is divided among the paternal heirs. You then do the same on the maternal side, and 50% will go to those heirs.

Unknown Heirs

What happens when some of the heirs are truly unknown? First, you must give five days’ written notice to the State’s Attorney before coming into Court to prove heirship. The State’s Attorney also requires copies of the Petition, will (if any), Affidavit of Heirship, and proposed Order of Heirship. If any sums will be due from the estate to any unknown heirs, the State’s Attorney will formally appear in the estate and will represent their interests through ultimate deposit of the funds with the County Treasurer. Second, you must publish to all unknown heirs or heirs whose whereabouts are unknown.

Surprising tip: If you read §§2-1(e), (f), or (g) you will discover that if at any time you can establish heirs at one relationship level on either the maternal or paternal side and you can also eliminate all heirs at the same relationship level on the other side, the entire estate (rather than just one-half) will go to the side where the heirs are established. It is not necessary to continue to search the other side until you locate more distant heirs. All you have to do is eliminate all heirs at the same level of common ancestor. This technique can be particularly important where it is impossible to obtain full records, such as where the ancestors lived in foreign countries, where records were destroyed by wars or natural disasters, and so on. If all heirs had to be located regardless of the degree of relationship, part of an estate would often escheat to the State of Illinois. The Probate Act directs a more just result.

Just The Facts

If you go into any Probate courtroom administering decedent’s estates in Cook County any morning and listen to the 10:00 call, you will probably hear the Judge say at least once that a tendered Affidavit of Heirship does not contain the necessary “facts.” How does that happen, and what is to be done? An example: the Affidavit states that the decedent died leaving no spouse and no children or descendants, and that therefore, the decedent’s heirs are his brother and sister. That Affidavit is missing the “facts” that lead to the conclusion that the brother and sister are, in fact, the only heirs. If you follow the proper procedure described above, you need to start with the decedent’s parents and trace all of their marriages and children. If those parents were married only once to each other, if neither parent had any other children outside of the marriage, and if the parents had only three children (including the decedent), the heirs would be the decedent’s brother and sister. That is the proper method of setting forth the “facts” of an heirship.

© 2000 by Cary A. Lind, all rights reserved