What are the probate rules for surviving heirs?

My grandmother recently passed, my grandfather died several years ago. I’d like to know how an estate is probated when one of the decedant’s children previously passed away and there are 2 other living children. Do the children of the deceased child have any entitlement to the estate if there is no Will?

Asked on July 12, 2012 under Estate Planning, Illinois


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

I am so sorry for your losses.  When a person dies with out a Will they are said to die intestate, and the intestacy statutes in their state will applly.  You hail from Illinois whose statute states as follows:

5/2-1. Rules of descent and distribution

Section 2-1. Rules of descent and distribution. The intestate real and personal estate of a resident decedent and the intestate real estate in this State of a nonresident decedent, after all just claims against his estate are fully paid, descends and shall be distributed as follows:

(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants per stirpes.

It is the last few words that govern.  Per Stirpes means by or through the roots.  So the children of the deaceased child will share their portion of the estate.  So they will share the thrid that would have gone to their parent.  Good luck.

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