In Illinois, what happens if someone passes away without a last will and testament? Dying without a will is known as dying intestate. This occurrence is more common than you might think, and the state of Illinois has established clear rules for intestate succession, in order to guide the probate process and oversee the distribution of the deceased person’s assets.
What Is a Will?
A will is a legal document through which a person sets down their wishes for how their property should be distributed at their death. Wills are also commonly used to name the guardian for any surviving children, and name the executor of the decedent’s estate — that is, the person who will collect assets and manage the deceased person’s estate until its final distribution.
Without a complete and up-to-date will, many important questions and considerations will be left up to strict intestacy statutes, which are established by the state of Illinois. This could result in your assets not being distributed the way you would have liked, and might lead to confusion, frustration, and extended waiting periods for your friends and family — making an already tough transition even more difficult for them.
It is important to remember, however, that a will is just one part of a comprehensive estate plan, which typically includes tax considerations, setting philanthropic goals, providing for your family, and properly setting up your most important assets to avoid probate.
Generally speaking, a will is used to dictate the distribution of assets that must go through probate. Therefore, those assets that are subject to probate are also the most likely to be governed by intestacy rules, if someone were to die without a will.
Probate Vs. Non-Probate Assets
Probate is the legal process for administering someone’s estate after they have died. This process is intended to make sure that the estate’s outstanding debts to creditors are resolved, and that any remaining assets are distributed to the proper people or entities — either in line with the decedent’s wishes, or following local intestacy rules of succession.
Broadly, probate assets include those that are owned solely by one individual, with no named beneficiaries. In many cases, a decedent’s most expensive and important assets may be eligible to avoid probate with or without a will, for any number of reasons.
For instance, real estate that is owned with a co-owner through joint tenancy or tenancy by the entirety automatically passes to the surviving co-owner upon the death of the decedent. You can also name a payable-on-death (POD) beneficiary to many different assets and accounts, allowing them to bypass probate; this includes many types of financial accounts, insurance policies, and personal property. Illinois also has a transfer on death instrument (TODI) which can be applied for many valuable assets, including real estate, in some cases. Finally, assets held in a trust are not considered part of a probate estate.
Intestate Succession Rules In Illinois
So, what happens to a person’s probate estate if they die without a valid will? While the exact chain of events may vary slightly from situation to situation, administering probate for an intestate estate generally requires a few key steps:
Naming an Administrator of the Estate
As we noted earlier, the will is commonly the mechanism that is used to name an executor for the estate, who takes on the important responsibility of overseeing the distribution of the decedent’s assets and managing important affairs. If a person dies without a will or without naming an executor in their will (or through another valid mechanism), then an administrator for the estate must be appointed by the probate court.
Generally speaking, the decedent’s closest living family members have the opportunity to name an administrator, who may be kin or a trusted third party, such as an attorney. If the family cannot agree on one administrator, then a judge will make the decision on who will serve. Ultimately, the administrator is the person who will gather the decedent’s assets, pay bills, and oversee the distribution of their money and property.
Paying Debts to Creditors from the Probate Estate
When any person dies, their outstanding debts and liabilities must be paid or resolved. The administrator assumes the responsibility of taking on these obligations, paying from the decedent’s estate (the administrator him or herself is not personally liable for the debt). This may include existing claims from creditors or taxes, as well as fees incurred by the costs of burial and probate, such as attorney’s fees, court fees, or reimbursements for the services of the administrator.
Distributing Remaining Assets According to Rules of Intestate Succession
Once debts and liabilities have been addressed, the remaining contents of the estate must be distributed, in line with the rules of intestate succession here in Illinois.
The state has fairly clear guidelines on how a decedent’s estate should be handled in cases without a will. Ultimately, though, the exact distributions will depend on the decedent’s family circumstances — namely, the order in which various family members have survived.
Here are a few common intestacy situations worth noting:
- If the decedent is survived by a spouse and children, then their spouse will receive 50% of their estate and the children will split the remaining half, per stirpes (this means that, should a child predecease their parent, then their share will pass to their children — the decedent’s grandchildren)
- If the decedent is survived by just their spouse, then their spouse inherits the entire probate estate
- If the decedent is survived by only their children, then the children inherit the full amount of the probate estate, equally divided, per stirpes
- If the decedent is survived by only parents or siblings, then the parents and siblings generally inherit the estate in equal shares, per stirpes
If the decedent has no immediate family, then succession will move on to more distant family members, such as grandparents, aunts and uncles, or cousins. Broadly speaking, the estate is divided equally among the maternal and paternal sides of the decedent’s family, if they have no surviving parents or siblings (and if their siblings have no descendents — that is, nieces and nephews to the decedent).
If the decedent has no surviving family members who can be located, then the estate escheats to the the county in which the decedent resided.
The Importance of Estate Planning
A 2019 survey from Caring.com found that 76% of respondents believe that having a will is important, yet only 40% actually have one. According to the survey, nearly 60% of adults between the ages of 45 and 54 say that they do not currently have a will; the same goes for roughly a third (34%) of adults 65 and older.
When asked why they have put off creating a will, or other important estate planning benchmarks, 22% said that they don’t believe that they have enough assets to leave to anyone, while 6% said that they didn’t know how to get started.
While it is not always the easiest or most pleasant subject to think about, estate planning is one of the most important things you can do to protect your loved ones in a difficult time. Estate planning is not just for the ultra-wealthy or the elderly. In fact, the best time to start thinking about your estate plan is when you’re feeling financially comfortable and in good health.
Preparing in advance can make it easier for your loved ones to manage without your input and attention down the line, and help ensure that your wishes are honored when it comes to many crucial decisions — including who will care for your children, what medical care you may receive, and how your most treasured assets will be handed down to the people you love.
Creating a will, and taking regular steps to keep it up-to-date over time, is an important consideration if you want to pass along your assets in a manner that is different than what the state allows. For example, you may want to leave money or property to friends, neighbors, or charitable organizations that are near and dear to your heart — and which are all left out of the intestate succession process. You may also wish to apportion your assets differently, depending on your relationships with your loved ones; intestate laws do not allow for any such distinctions based on your personal preferences. You can also set up your will to work with other parts of your estate plan; if you have a trust, for example, a pour-over will can be used to dictate that any property that passes through the will at your death is immediately transferred to your trust.
Whether you’re planning for your family’s future or preparing to deal with a loved one’s estate or assets in probate, an experienced legal professional can help make the process less daunting. That’s where the experienced and compassionate attorneys and staff at the Law Offices of J. Jeltes, Ltd. can help.
Ready to Discuss Wills, Trusts, or Probate With a Chicago Attorney?
As you get started with estate planning or prepare to update your current documents, our team can help prepare basic wills, trusts, powers of attorney, and living wills (also known as advance directives).
Need a guide in navigating the challenges that may arise during probate administration — from minor and disabled heirs and legatees, to dealing with creditors or unfunded trusts? Our attorneys have experience with both contested and uncontested estates, asset division, and probate administration.
Founded in 2009 and offering more than 20 years of combined experience, the attorneys and staff at the Law Offices of J. Jeltes work together to provide skilled, efficient, and affordable legal representation to individuals and families going through major life transitions. Don’t hesitate to contact us whenever you’d like to begin the conversation.