Estate Planning 101: What Happens If You Die Without a Will in Illinois?

Understanding what happens to your stuff after you die isn’t a topic everyone is interested in discussing, but aren’t you at least curious? We spend our lives collecting and caring for stuff. If you don’t have a will or trust set up to say what happens to that stuff, the state of Illinois will distribute it this way:

Unmarried with kids/grandkids, etc. – If you are unmarried when you die, but you have descendants, they inherit all your probate estate per stirpes (equally as to each line of surviving descendants). For example, if you have three kids (Mary, Tom & Seth) and Seth died before you leaving his two kids (Sarah & Ben), the assets would be divided like this: 1/3 to Mary, 1/3 to Tom & 1/3 to Seth’s two kids. In other words: 1/6 to Sarah and 1/6 to Ben. If Seth didn’t have any children and predeceased you, then Mary and Tom would each get 1/2.

Married – If you have no kids then your estate all goes to your surviving spouse. Here’s the kicker. If you do have kids, your spouse only gets half of the estate and the other half goes to your children in equal shares. This often surprises people.

Unmarried with no kids – Your estate is equally divided between your parents, brothers, and sisters in equal shares. If only one parent is alive, then that parent takes a double share. If one of your siblings predeceases you, that sibling’s share would go to the children of that sibling, your nieces or nephews.

Also, on an interesting note, there’s no distinction between full blood siblings or half blood siblings. They inherit from you equally.

No surviving parent and no siblings – Your estate is divided in half. Half goes to your maternal grandparents and the other half to your paternal grandparents. The same process of going down the line for descendants happens at this stage. Let’s say your grandparents are all deceased, but you have a surviving aunt. As the descendant of that line of inheritance, she would take part or all of the grandparents share, depending on whether or not she had living siblings.

Last Resort – When all else fails, the state of Illinois happily takes property that is either unclaimed or abandoned. If you have no next of kin when you die, the state of Illinois “inherits” your estate. Real property becomes the property of the county where the property is located and personal property (bank accounts, etc.) belongs to the county where you lived.

These are the rules of descent in Illinois. You can read them for yourself at 755 ILCS 5/2-1 et seq. Understanding these rules is a good starting point for deciding whether or not you need a will.


Much To Do About Poo: Recent Challenge to the Development of an Illinois Megadairy

I hope I got your attention with the title. This case is no laughing matter. The Second District Court of Appeals in Illinois recently released their opinion Helping Others Maintain Environmental Standards v. A.J. Bros., No. 08-CH-42. People in Nora Township and other environmentalists got together to challenge a proposed “megadairy.” Each of the two proposed facilities would have the capability of holding 6,850 cows. If both facilities were developed and fully stocked, Nora Township residents would have a cow-covered landscape: 13,700 to be exact.


Even more impressive is the amount of waste produced by that many cows. Just one facility would have three “livestock waste holding ponds.” The dimensions for these “ponds”: 300 x 855 x 20 feet, 760 x 850 x 20 feet, and 400 x 400 x 20 feet. I’m no mathematician, but my amateur calculations lead me to this conclusion. If each proposed pond were combined into one gigantic pond, it would be as large as 60 football fields and then 20 feet deep! Now fill that that mega pond with cow manure and you have one big pile of poo.

Here’s how I boil down the conflict-causing issues in this case: (1) Will the  mega poo pond contaminate ground water? (2) Will it stink so bad neighbors won’t be able to enjoy the use of their homes.

You may not know this about me, but I’m very interested in Agricultural Law, the rules that govern how the food we eat is grown, fertilized, distributed, sold, taxed, certified, etc. This case gave me some insight into how those food specific laws interact with good old fashion common law, like nuisance and trespass. I won’t bore you with all the details. Here are some interesting points: 

  • The concerned residents argued that there should be an implied right of action under the Livestock Act, giving them standing to sue the developer and the Department of Agriculture. Implied rights of action are difficult to get because, in essence, they overrun the legislatures right to say how the law should be enforced. In other words, if the legislature intended a private right of action, they would have put one in the Act. The court examined the four factors and found several missing. Therefore, no implied right of action.
  • Even though the residents didn’t have standing to sue under the Livestock Act, they still had their common law rights, which gave them some temporary relief when they sought a temporary injunction.
  • Residents lost at the trial level when they asked for a permanent injunction (using their common law rights to permanently stop construction of the megadairy) because they didn’t bring enough convincing evidence to the courtroom to show that there is permeable rock below where the ponds will be built. Without a strong showing of inevitable water contamination, the residents lost.

To me, this case is a picture of the changes happening in agriculture in America. Movement toward maximum profit means huge operations. Challenging that movement in court when you’re the mega farmer’s neighbor isn’t impossible, but it’s certainly not easy.


Illinois Homeowner Protection Notice

Everyone is aware of the current housing crisis. Families everywhere are struggling to meet their mortgage payments. Banks are overwhelmed by the number of requests for loan modifications and understaffed for the task. Working out a solution to save your home often means looking for more time: more time to negotiate a modification, more time to try to short sale your home, more time to try to save up money for a housing transition.

To prevent hasty foreclosures without homeowners getting information they need to assess how to move forward, the Illinois legislature instituted a homeowner protection notice. Located at 735 ILCS §5/15-1502.5, the homeowner protection notice became law in April of 2009 and is set to expire July 1, 2013.

The new law requires banks foreclosing on mortgages to send a notice to the homeowner that looks like this:


The notice is required to contain certain information. Including, for example, the fact that the loan is past due, that approved housing counseling is available, that attending the approved counseling will create an additional 30 days of grace, and contact information to set up a counseling session.

One of the biggest advantages of this notice provision is that it creates additional time for homeowners to research the options available to them before a foreclosure action is initiated in court. It also creates a valid defense in court for homeowners who never received the required notice. If you find yourself in court facing foreclosure and you never received this homeowner protection notice, you can challenge the validity of the foreclosure process. The bank is strictly prohibited from filing a court action for foreclosure until this notice is sent and the homeowner has the opportunity to schedule a counseling appointment.

Concluding remarks: The Illinois legislature wants to see homeowners protected from losing their homes. If your home is in distress and you are behind in your payments, be on the watch for this notice from your bank. Then set up a counseling session. Not only will you become more educated, you will have a little bit more time to plan your next step.


A Little Mercy Please

Garnishment – the dreaded word. Garnishment is when a creditor reaches into your paycheck each month and pockets a certain amount, which is then applied toward what you owe that creditor. My guess is that most people think of garnishment in relation to child support payments. But garnishment can happen anytime you have an outstanding unpaid judgment against you.

For this entry, assume that the creditor obtained a judgment against the debtor. Through post-judgment discovery (a court-sanctioned investigation of the debtor’s assets and income), the creditor finds out that the debtor works in a local factory and makes $500.00 a week in gross income. State and Federal laws restrict how much a creditor can garnish from any individual’s wages. The calculation varies depending on how much the individual makes. In this case, assume the creditor can garnish $75.00 out of each paycheck of the debtor.

Our debtor does not make a lot of money, but he supports a large family on his $500.00 a week, including his wife, three children, and his elderly mother. The $75.00 less a week make a huge difference in his ability to support his family. Is there anything he can do for relief?

Yes. Buried among the procedural guidelines, is a small but helpful section: 735 ILCS 5/2-1402(C)(2). This section gives the court discretion to reduce the amount that can be garnished from the debtor. Specifically, the court can take into consideration “the reasonable requirements of the judgment debtor and his or her family, if dependent upon him or her.” This language does not guarantee that a judge will reduce the amount to be garnished, but it does mean that the debtor can plead for mercy. Instead of allowing $75.00 to be taken out each week, an understanding judge might knock the amount down to $35.00 a week, which will go a long way in helping the debtor take care of his family.  

Concluding remarks: If you’re facing a potential garnishment that will impact your ability to provide for your family, ask the judge for a little mercy, and remind him that the legislature has given him the authority to extend that mercy.


Holding a Wildcard

My family loves to play games, from board games as traditional as Monopoly to a card game affectionately referred to as Pond Scum. One of my favorite games as a young child was Uno. It was simple and fast. Plus, I always knew which card to hang on to: the wildcard. It was a beautiful card, containing all the colors of the game. The wildcard could be played on any other card, and I always viewed it as the perfect way to end a game of Uno.

In Uno, having a wildcard is good, but knowing when to play it is better. The same is true with a legal wildcard.

The legal wildcard I’m referring to is found in the Illinois Code of Civil Procedure. 735 ILCS 5/12-1001(b). The players who hold a wildcard are debtors. A debtor is a person against whom a judgment has been entered.

So how much is that wildcard worth? And when should it be played?

The wildcard is worth $4,000 a person. Figuring out when to play it is the tricky part. The law puts a debtor’s assets into two figurative piles. The first is the exempt pile. This is the stuff the law says your creditor can’t touch, like family pictures, a bible, or social security payments. The second pile contains everything else, which the law calls non-exempt assets. The second pile is the candy store for the creditor. They get to look at what’s there and decide (with the court’s blessing) what they want to use to pay the debt.

With these basics in mind, here are some simple rules for playing the debtor’s wildcard: (1) only use it on non-exempt, second pile, assets; (2) don’t use it until the creditor is trying to come after something from the second pile that you want to keep; (3) claim it in court, that’s the only way it counts; and (4) make sure you really want to use it because you only get to play it once up to $4,000. For example, let’s say you owe AT&T $1,000 on a judgment and in your second pile you have a bank account worth $3,000. You can play your wildcard to protect all the money in your bank account, but that only leaves you with $1,000 on your wildcard. That means, if AT&T, or another creditor, came after the 1965 Mustang you restored with your dad, you’d only have $1,000 worth of wildcard left to play toward something that might be worth more to you than your bank account.      

Concluding Remarks: (1) Always consult a lawyer (2) know your cards and know when to play them.