Muslim Client: “But all I want is for my assets and property to be distributed according to Shariah, so why do I need a will?”
Attorney: “Well, if you die without an estate plan, like a will or living trust, that is recognized by Illinois, then Illinois determines who gets your money, your property, your belongings, and who will care for your minor children. And since you’re dead, there will be nothing you can do about it. So an estate plan is the tool we have to override the state and determine these things before our death.”
Dying Without An Estate Plan
In dying without an estate plan, you will leave behind numerous unanswered questions about how to settle your affairs. The broad unanswered questions range from how your personal property is distributed to who inherits your real property to who cares for your minor and/or disabled children. As such, life for those you love will be made even more strenuous during their grieving process since you hadn’t determined in advance who will get what.
No Will = The State Stepping In
Many do not realize that if you do not properly settle your affairs in advance of your death, then the state will step in and settle your affairs for you upon your death. The “state’s estate plan” may not be what you desire for your loved ones or what you would have chosen for distribution of your assets. Nevertheless, in the absence of a will or other estate planning documents, upon your death, the state’s intestacy laws take effect and will determine how your property will pass to your heirs and who will care for any minor children you leave behind.
How Illinois Dictates Distribution of Your Property and Monies
In the State of Illinois, the Illinois Probate Act determines who your heirs are and what portions of your assets they will get upon your death. For example, if there is a spouse and four children, the spouse gets half of the money from the estate. The children get the other half divided equally between them. If there is no spouse, but four children, the children get everything divided equally. If the person had no spouse or children, then their assets go to their next closest surviving relatives. These might include their parents, cousins, nieces or nephews.
However, there may be numerous problems with these results. For one, the surviving spouse may be relying on the children’s assets, but, now, the surviving spouse would not be able to use the children’s assets for his or her care and living expenses. Instead, the children’s share would have to be used only for the children’s benefit. Next, once the child is 18, the child would have full authority over his or her share of the assets. The surviving spouse would have no say as to how the 18 year-old uses his or her assets. So, rather using the money for a college education, the child may decide to buy a new car.
Illinois v. Shariah
The Illinois Probate Act conflicts with Shariah when it comes down to inheritance law. The two primary areas of conflict rest in determining who your heirs are and how much each heir is to receive. As such, if a Muslim dies without an estate plan in place, the court’s hands are tied and can only distribute the deceased’s assets according to Illinois law.
The only remedy to conform Illinois law with Shariah is to create an estate plan that is recognized by Illinois law. In creating a proper will or living trust, the court must follow the distribution dictated in the will or trust. This allows Muslims to distribute their money and property in ways that comport with both Shariah and Illinois law.
Got Kids? What the State Says
One of the most problematic consequences of dying without an estate plan is not being to select a guardian for your minor and/or disabled children. If you do not have properly prepared and executed will or estate plan document that specifically names a guardian to care for your children, any competent adult can petition to be the guardian for your children. The judge will make the decision without even knowing your wishes and will select a guardian that the court determines is best for your children’s care.
So, the next time when you think why do I need an estate plan, think: “If I don’t take the necessary steps now to plan for my loved ones and my assets after I die, then the State of Illinois will do it for me.” The only question that remains is, “Will I be happy with the results?”
Don’t wait. Take the time and plan now.
The above is provided for informational purposes only and is not intended to serve as legal advice. Seek legal advice only from an attorney. For legal advice on the setting up your advance directive, contact Atty. Syeda M. Madani to set up an appointment. If you have a few questions that can be wrapped up in 30 minutes or less, try our 30-Minute Quick Call Appointment.
