Illinois Estate Laws for Minor Children

By John Cromwell

When a parent dies, a key consideration is what will happen to his minor children. In Illinois, a minor child is anyone under the age of 18. Every parent wants to ensure their child is looked after by a responsible adult and financially secure in the event of their death. Illinois has established a clear set of standards regarding children of deceased parents that addresses both circumstances.


In Illinois, if the custodial parent of a minor child dies, the child typically goes to live with the surviving parent, regardless of any wishes the deceased parent might have expressed in his will. There are some exceptions to this rule. If the surviving parent is incarcerated or been convicted of a violent crime against the now deceased parent, the parents of the decedent can sue for custody of the child. If both of the child's parents are deceased or the child is not in the physical custody of the surviving parent, the decedent, through his will, can appoint a person to take custody of his minor child. That person can formally obtain custody by filing a claim in the county court where the child is a permanent resident.


If a parent dies without a will, his estate is considered intestate. This means his property will be distributed according to Illinois's intestate succession laws. If a parent dies with surviving children and he has no will but a surviving spouse, half of his estate goes to his children. If a decedent dies without a surviving spouse, the entire estate goes to his children.

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If a parent has a will, he can leave whatever property he sees fit to his child. If the will was executed prior to his child's birth, the child is entitled to a portion of the deceased parent’s estate even if the child is not mentioned in the will. The child may claim the estate percentage he would have been entitled to had the deceased parent not had a will at all. The only exception to this rule is if the will makes it clear the deceased parent intended to disinherit the child and that is why the child was not named.


Trusts are a popular tool for estate planning because they exempt all property included in the trust from probate, allowing the trust beneficiaries to access the property immediately. Trusts are especially good for transferring property to minor children. Trust property is managed by trustees, not the beneficiaries. As a result, the children are provided for without having to undertake the responsibility of maintaining property. To create a trust in Illinois after one's death, known as a testamentary trust, the decedent’s will must transfer property to the trustee who then holds the property on behalf of the trust. Additionally, the will must specify the decedent's children are to benefit from the trust and outline the terms for how the property is to be managed and distributed.

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