Intestate Succession: What Happens When Someone Dies Without a Will?

Ideally, when you pass away, all of your affairs will be in order. You will have set up your insurance policies, your trusts, and your will so that your assets will be distributed in accordance with your wishes and your family will be well-cared for. Not everyone plans ahead, however, and unexpected events occur. Read on to learn about “intestate succession,” the process by which assets are distributed when someone dies without a will. If you are looking to plan for your financial future in the Chicago area, or if you have any questions about trust administration or probate, reach out to our savvy Illinois trust and estate planning attorneys.

Illinois Intestacy Laws

When someone passes away without a trust or will dictating the distribution of their estate, then the estate will go into probate. A probate court and the estate administrator will distribute the assets in the estate following the laws of intestate succession. The laws of intestate succession vary depending on the state. As a general matter, intestacy laws determine who inherits the property in an estate, how it is divided, and in what order.

Spouse and Descendants

In Illinois, the first question to ask is whether the decedent is survived by a spouse and/or descendants (children, grandchildren, etc.). If they have a surviving spouse or descendants, the property will be distributed as follows:

• Spouse and descendants. Half of the estate will go to the spouse, and the other half will be distributed to the decedent’s descendants, split up “per stirpes” (discussed below).
• Spouse and no descendants. The surviving spouse will inherit the entire estate.
• Descendants and no spouse. The decedent’s assets will go to the descendants, divided per stirpes.

“Per stirpes” is a legal term referring to the splitting branches of a family tree. In practice, it means that every successive generation will split the share owed to their parents. If, for example, an intestate decedent has two children and no spouse, then each child is entitled to 50% of the estate. If one of those children predeceased the decedent but had two children of their own (the grandchildren of the original decedent), then those grandchildren are entitled to split their parent’s share. In that case, 50% of the estate would go to the decedent’s remaining child, and the other 50% would be split between the decedent’s grandchildren, 25% each.

No Surviving Spouse or Descendants

If the decedent is not survived by a spouse or any descendants, then the estate will pass to surviving parents or siblings or the issue of surviving siblings, divided equally. If there are no surviving parents or siblings of the deceased, then more distant family members on each side of the family will inherit, with a preference toward dividing the estate equally between the paternal and maternal family lines of the deceased. If no family whatsoever can be identified, then the assets in the estate may escheat (revert) to the state.

Plan For Your Future and Protect Your Estate in Illinois

If you need assistance protecting your finances and your family in Illinois, get qualified, effective legal help by contacting the Chicago estate planning lawyers at MacDonald, Lee & Senechalle in Hoffman Estates at 847-310-0025 and in Des Plaines at 847-298-5030.