Dying "intestate"
When you die without a valid will, you die "intestate." Illinois law then determines who inherits your estate, not you. The rules are set out in the Probate Act of 1975 (755 ILCS 5/) and follow a fixed priority order based on family relationships.
Many people assume their spouse will automatically inherit everything, or that their wishes are understood by their family. Both assumptions are often wrong.
Illinois intestacy distribution
Under Illinois intestacy law, your estate is distributed as follows:
- Spouse and descendants: your estate is split, 1/2 to your spouse, 1/2 to your descendants (children or grandchildren)
- Spouse, no descendants: entire estate to your spouse
- Descendants, no spouse: entire estate equally to your descendants
- No spouse, no descendants: to your parents, then siblings, then nieces/nephews, and so on up the family tree
- No surviving relatives: estate escheats (passes) to the State of Illinois
Note: unmarried partners, including long-term domestic partners, receive nothing under Illinois intestacy law. Only a will or beneficiary designation can provide for them.
The probate process without a will
Without a will, there is no named executor. A court must appoint an "administrator", usually a family member who petitions to serve. This adds time, cost, and potential for family conflict. The court will require a bond from the administrator, adding further expense.
In Illinois, a formal probate proceeding requires filing with the circuit court in the county where the decedent lived. It typically takes 6–12 months for straightforward estates.
What intestacy can't do
Intestacy law cannot: name a guardian for your minor children (a court will decide), leave assets to friends or non-relatives, create trusts for beneficiaries who are minors or have special needs, or provide for charitable giving. A will is the only document that can accomplish these goals.
Common myths
Several widely held beliefs about dying without a will are incorrect:
- "My spouse will get everything", not if you have children. Illinois splits 50/50 between spouse and descendants.
- "My family knows what I want", knowing your wishes and having legal authority to carry them out are different things.
- "I'll do it later", incapacity can precede death; if you lose mental capacity, it's too late to sign a will.