FAQs - Probate and Estate Administration

What if you die after a divorce without changing your will?

Answer: A section of the Probate Act steps in and nullifies those parts of the will which make gifts to the former spouse. (755 ILCS 5/4-7(b)).

Illinois statutes also nullify powers of attorney and those terms of revocable trusts which pertain to a former spouse. (755 ILCS 45/2-6(b) and 760 ILCS 35/0.01 et seq.). However, that is not the case with respect to the beneficial interest in a policy of life insurance.

The law does not step in and revoke a designation of a former spouse as a beneficiary. The surest way to change the beneficiary is to complete and submit a formal change of beneficiary. A second-best way would be to include a waiver in the marital settlement agreement. The trick to that, of course, is to make sure the waiver is highly specific lest it will be deemed too vague to be enforceable. A third way is to take some positive step which manifests an intention to change the beneficiary, an uncertain proposition if that "positive step" is something short of formally changing the beneficiary.


What if a child is born after a will has been made, or even after the parent has died?


Answer: In general, that child will be entitled to the same share of the estate that the child would have received had the parent died intestate (that is, without a will). There are exceptions when a will exists and speaks to this point. An after-born child will be entitled to what the will calls for, or disinherited, depending on whether the will makes gifts to after-borns or disinherits them. The statutes will control when the will is silent on the point or there is no will. (755 ILCS 5/2-3 and 755 ILCS 5/4-10).