What Happens If You Forget to Include Your Children in Your Illinois Estate Plan?
Many parents assume that if they forget to include their children in a will or trust, the law will automatically “fix it.” In Illinois, that can be partly true, but it depends on how and why the omission happened.
If you’re a parent, grandparent, or guardian, understanding how Illinois law treats omitted children is critical to avoiding family conflict and costly court proceedings.
Let’s break it down in plain English.
When a Child Is Left Out of an Illinois Estate Plan
Under Illinois law, a child who is unintentionally left out of a will is often referred to as a “pretermitted child.” This usually happens in one of two ways:
- The child was born or adopted after the will was created, or
- The parent simply forgot to update their estate plan
Illinois courts recognize that parents don’t always update estate documents as life changes, and the law provides some protection for children in these situations.
Illinois Law Protects Omitted Children; But Only in Certain Cases
If You Have a Will
If you created a will and later had a child you did not include, Illinois law generally assumes the omission was accidental unless the will clearly shows otherwise.
In that case, the child may be entitled to receive the share they would have inherited if you had died without a will, known as intestate succession.
That share is taken from:
- The portion of the estate that went to other beneficiaries, or
- The surviving spouse’s share, depending on the circumstances
However, this protection does not apply if:
- The will clearly states you intended to leave the child out
- The child was provided for outside the will (such as through a trust or beneficiary designation)
If You Do NOT Have a Will
If you die without any estate plan at all, Illinois intestacy laws control who receives your assets.
In general:
- If you have a surviving spouse and children, the estate is split 50% to the spouse and 50% to the children
- If there is no spouse, the children inherit everything, divided equally
In this situation, children automatically receive their share, but that doesn’t always mean the process is simple or fast.
When Can Children Actually Receive Their Inheritance?
Adult Children (18 and Over)
Adult children can usually receive their inheritance after probate is completed, debts are paid, and the court approves distributions.
That process can take months, or longer if disputes arise.
Minor Children (Under 18)
This is where problems often arise.
Illinois law does not allow minors to directly receive inherited assets. Instead:
- The court may appoint a guardian of the estate
- Funds may be held until the child turns 18
- Ongoing court supervision may be required
This often leads to:
- Additional legal fees
- Delays
- Less control over how and when money is used for the child
Why Relying on Illinois Law Is Risky
Even though Illinois law provides a safety net, relying on it can create serious issues:
- ⚠️ Court involvement is unavoidable
- ⚠️ Judges, not parents, decide how assets are handled
- ⚠️ Family disputes are more likely
- ⚠️ Minor children may receive large sums all at once at age 18
A properly drafted estate plan can avoid all of this.
How to Protect Your Children the Right Way
The best way to ensure your children are protected is to:
- Regularly update your will or trust
- Clearly name all children and beneficiaries
- Create trusts for minor children
- Name guardians and trustees you trust
Estate planning is not a “set it and forget it” task, especially as families grow and change.
The Bottom Line
Illinois law may help children who were accidentally left out of an estate plan, but it’s no substitute for careful planning. Taking the time to review and update your estate plan can save your family stress, delay, and unnecessary expense.
If you’re unsure whether your current estate plan properly protects your children, or if you don’t have one at all, now is the time to take action.
📞 (708) 529-7794 | Law Office of Jonathan W. Cole P.C. — Your Neighborhood Law Firm.
