The State's Attorney and Unknown Heirs in Illinois

I am a member of the Chicago Bar Association's Probate Practice Committee. This past week, the Committee had its monthly meeting, and the speaker was Sheila Threlkeld of the Cook County State's Attorney's office. The Cook County's State's Attorney represents the interests of Cook County and the Cook County Treasurer's office.

You might ask, "why does Cook County have an interest in decedent's estates?" The answer lies in one word: escheat. "Escheat" is just a fancy word meaning that, if you die having no valid heirs and legatees, your property passes to the government. In Illinois the relevant statute allowing property to escheat is Sec. 2-1(h) of the Illinois Probate Act. You'll notice that, by "government," we usually mean the county where the property was or is, or where the decedent resided. THAT is why Cook County is potentially interested in estates.

You can't really talk about property escheating without talking about unknown heirs, which is why the State's Attorney wants to receive notice when heirship is unknown. For instance, let's say that you are handling the probate estate of a person who died single and without children. Maybe you were hired to handle the case by the decedent's friend, who doesn't know anything about members of the family. Maybe the decedent's parents survived him. Maybe not. Maybe the decedent had siblings, who are alive or who are dead but have living children. Maybe not. In some cases, you'll have to go to court and state in your affidavit of heirship that you just don't know whether the decedent has heirs. In that case, you'll want to give notice to the State's Attorney BEFORE you go to court. (This is a requirement under the Cook County Rules of Court -- see Rule 12.2(c).) The State's Attorney will take over if no known heirs appear during the probate proceeding. (The State's Attorney is being increasingly stymied by genealogy or heir search firms that try to locate unknown heirs -- for a fee, of course.)

Note that a different situation arises if you have known heirs you can't find (because you don't know where they are). Property of these types of heirs passes to the State of Illinois as unclaimed property, which the heirs can then claim if they later come forward. The State's escheat interest comes pursuant to Illinois' Uniform Disposition of Unclaimed Property Act.

Sometimes you know the heir's name and address, but the heir refuses to sign a receipt for his or her distribution. This is often the case where a decedent leaves a "screw you!" gift to someone (like "I leave my son MICHAEL the sum of $1, because he's a jerk and that's all he deserves -- HAHA"). Why would Michael want to assist with the administration of his father's estate in this situation by signing a receipt for his $1? In such a case, you can still close the estate without Michael's receipt as long as you deposit Michael's share with the Cook County Treasurer (and get a receipt from them). There's a bit more work involved -- you need to petition the court to make this deposit -- but at least it resolves the issue.