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Ask an Attorney: March 2022

February 21, 2022

My husband’s health is declining rapidly. We each have children from prior marriages. If he dies with no estate planning, will I inherit the house?

With no estate planning, the names on the deed will control who gets the house. If the house is in Joint Tenancy with Right of Survivorship – for example John Doe and Jane Doe, and John predeceases – then Jane will get the house. If the house is in your husband’s name alone, both the surviving spouse and the children will get a share of the house.

My children want me to sign a power of attorney giving them authority to do my banking. Why should I do that?

In Illinois, we have two types of powers of attorney: a power of attorney for health care and a power of attorney for property. Should you become unable to manage your own affairs as a result of illness, it’s a terrific idea to have a power of attorney in place so that the agent you choose can manage your health care decisions and your assets when you are unable to.

Your failure to do this type of planning may result in a court proceeding called a guardianship. Guardianship is a probate court case in which the court will determine if you are capable of making your own decisions regarding the management of your assets and your health care. If you are not capable of making those decisions, the court will appoint a guardian to make decisions for you (a family member or someone else). Planning in advance will avoid this court proceeding.

What happens if I die without a will and have a spouse and three children?

Your spouse gets half of your assets and your children each get one-third of the remaining half. This is not likely to be the result that most people want because most people want their spouse to receive all the assets to use for their future and their health care.

Can I disinherit my children and leave everything to charity?

Yes, you can disinherit your children entirely should you choose to do so. The only person you cannot disinherit entirely is your spouse.