Dying Without a Will in Illinois


In Illinois, when a person dies (the "decedent") their property (the "estate") is collected and distributed according to the terms of their will. However, if the decedent leaves no will, or the will can't be used because it doesn't meet the requirements of Illinois law, the decedent's estate is distributed by a process called intestate succession, or intestacy for short.

In Illinois, if you die intestate your estate will be distributed to your closest relatives (your "heirs"). Who your closet relatives are depends on your family situation, specifically whether you are survived by a spouse, children, and/or any brothers and sisters.

For example, for a typical family (husband and wife plus kids), upon the death of the husband with no will, half of his estate will pass to the wife and the other half passes to the children to be divided equally between them. However, anything held jointly between the spouses such as bank accounts, homes, cars, etc. will go directly to the surviving spouse.

If you die without a spouse your estate will get divided up amongst your surviving children in equal shares no matter if they were estranged or not. If you have no kids it then goes to your parents, then your siblings and from there on to grandchildren. Beyond that is nieces/nephews and cousins.

Before the estate is even distributed, the Illinois probate process begins by the filing of a "Petition For Letters of Administration" by individuals seeking to serve as the administrator of the estate. The administrator pays the decedent's debts and bills and carries out the distribution of the decedent's estate. Furthermore, the administrator is required to purchase an insurance policy (called a "surety bond") to ensure that the administrator doesn't run off with the estate's property.

Illinois law has an order of preference for individuals seeking to serve as the administrator: (1) surviving spouse, (2) legatees (someone who will receive property through intestacy), (3) children, (4) grandchildren, and (5) brothers and sisters. The court has discretion to choose the administrator if two or more people from the same level of preference file petitions. If no individual files a petition, the court may appoint a "public administrator" from the county the decedent resided.

Once an administrator is appointed, the court will order "Letters of Office" to issue. Letters of Office serves to notify third parties holding a decedent's assets that a person has died and a representative has been appointed to act on behalf of the estate for all matters. Without this document, assets titled in a decedent's sole name cannot be accessed.

Administrators typically hire an attorney to help them effectively navigate the intestate process, as well as locate and identify the appropriate heirs. Once the estate has been opened, the entire probate process can take anywhere from 6 months to several years depending on the size of the decedent's estate. Hiring experienced legal assistance in this area helps to avoid excess costs that could reduce the value of the estate.

Dying without a will in Illinois can lead to some very confusing and complex issues. For more information regarding intestate succession in Illinois or for an attorney referral, please contact us.