What Happens When Someone Dies Without Leaving a Will in Illinois?

Uncle Charlie has just passed away. Your family has searched everywhere for his will or a copy of his will -- but your efforts have been to no avail. It’s not at his home, and there is no evidence that Uncle Charlie had a safety deposit box. You’ve even called all of the local law offices, but none of them have found anything to indicate Uncle Charlie ever wrote a will. What happens if he doesn't have a will? Does everything go to the state?

Read on to learn about what happens to someone’s property in Illinois if he or she dies without leaving a will.

What Is Intestate Succession?

When someone dies without making a valid will, they are said to have “died intestate.” In this situation, the state steps in to distribute the property of the deceased person (decedent) according to intestacy laws enacted by the legislature. In essence, Illinois has established a “default” will to determine how property should be distributed when someone has not made a will. Rest assured, an individual's property does NOT automatically go to the state. Instead, the law provides that it shall pass to the “heirs” of the decedent. But just who is considered an “heir” in the State of Illinois?

How is Property Distributed Under Illinois Intestacy Laws?

In most cases, intestate succession descends the decedent’s family tree, distributing property to the decedent’s spouse and “descendants” (i.e. children, grandchildren, etc.). For example, in Illinois, property is distributed in the following manner:

  • If an individual is married and has no surviving descendants, the entire estate goes to the surviving spouse.
  • If an individual is married and has surviving descendants, the surviving spouse gets fifty (50%) percent of the property and the descendants most immediately related to the decedent split the remaining fifty (50%) percent of the property amongst themselves. The descendants inheriting in this situation should all be equally related to the decedent -- e.g. the decedent’s children. Therefore, if the decedent has surviving children and grandchildren, only the children will inherit property. However, if one of the children dies before the decedent, the decedent’s grandchildren would take their parent’s share. If none of the decedent’s children are alive, the property not going to the surviving spouse would be distributed equally amongst all of the decedent’s grandchildren.
  • If there is no surviving spouse, but there are descendants, then the property is divided equally among the descendants. Again, all of the inheriting descendants should be equally related to the decedent. A grandchild cannot inherit unless either: the decedent has no living children, or the decedent outlived the grandchild’s parent.   

Let’s apply these laws to Uncle Charlie’s situation. If Uncle Charlie was married and has one child, even if the child is a minor, the property is divided equally between his wife and his child. If Uncle Charlie left a wife and two children, his wife would get half of the property and each of his children would get 25% of his property. If one of Uncle Charlie's children died before Uncle Charlie, leaving behind Uncle Charlie’s grandchildren, the grandchildren would take their parent's share of Uncle Charlie's estate.

What if Uncle Charlie dies without being married or ever having children? In that case, the property ascends Uncle Charlie’s family tree to his surviving parents and siblings. If only one of Uncle Charlie's parents is surviving, that surviving parent takes a double share. Thus, if Uncle Charlie's mother was surviving and he had two brothers and two sisters, his property would be divided with his mother taking 1/3 of the estate and each sibling taking 1/6 of the estate. If his mother was not alive, then his siblings would each take twenty-five (25%) percent of his property.

Who Administers the Estate?

Since those dying without a will generally have not appointed a person to administer his or her estate, the Illinois intestacy law also specifies that those most closely related to the decedent share the right to nominate the Administrator.

For example, if Uncle Charlie dies leaving four siblings as his closest heirs, each of them has an equal right to nominate someone to act as the Administrator. If all siblings agree on the choice of administrator, then the administrator can be immediately appointed without a court hearing. Otherwise, the court will hold a hearing to select an heir to act as the administrator.

Does Property Ever Go to the Government?

It is only when no kindred (heirs) can be located that an individual's property passes to the government. In that situation, any real estate that the decedent owns goes to the county in which the real estate is located. Any of the decedent’s personal property, located in the state or outside of the state, goes to the county in which the decedent resided.

Thus, if Uncle Charlie lived on his farm in Knox County and also owned 80 acres of land in Warren County, his farmland would go to Knox County while the 80 acres would go to Warren County. All of his personal property, farm equipment, household goods, cash, etc., would go to Knox County.

More Information

To learn more about intestate succession and estate law, in general, feel free to check out FindLaw’s estate planning section. If you have more specific questions or need individualized legal assistance, you may want to consider retaining an estate planning attorney.

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