If you die without a will in Illinois, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in Illinois.
Which Assets Pass by Intestate Succession
Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.
Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples:
- property you’ve transferred to a living trust
- life insurance proceeds
- funds in an IRA, 401(k), or other retirement account
- securities held in a transfer-on-death account
- real estate held by a transfer-on-death deed
- payable-on-death bank accounts, or
- property you own with someone else in joint tenancy or tenancy by the entirety.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Illinois.
Who Gets What in Illinois?
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with:
here’s what happens:
- children inherit everything
- spouse but no descendants
- spouse inherits everything
- spouse inherits 1/2 of your intestate property
- descendants inherit 1/2 of your intestate property
- parents but no spouse, descendants, or siblings
- parents inherit everything
- siblings but no spouse, descendants, or parents
- siblings inherit everything
- parents and siblings inherit your intestate property in equal shares, except that if only one parent is living, that parent gets a double share
The Spouse’s Share in Illinois
In Illinois, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great-grandchildren. If you don’t, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property 50/50.
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright; it is not intestate property. Jed also inherits $100,000 worth of Barrett’s additional property. Barrett’s daughter inherits the remaining $100,000 share of Barrett’s property.
Children’s Shares in Illinois
If you die without a will in Illinois, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, Illinois must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. 755 Ill. Comp. Stat. § 5/2-4.
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share unless the decree of adoption specifically provides for continuation of inheritance rights. If, however, your biological children were adopted by your spouse, that won’t affect their intestate inheritance. 755 Ill. Comp. Stat. § 5/2-4.
- Posthumous children. Children conceived by you but not born before your death will receive a share. 755 Ill. Comp. Stat. § 5/2-3.
- Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if you acknowledged your paternity or if during your lifetime or after your death a court establishes your paternity. 755 Ill. Comp. Stat. § 5/2-2.
- Artificial insemination. A child born through artificial insemination after your death will receive a share if you consented in writing to the use of your biological matter and the child is born within 36 months of your death. 755 Ill. Comp. Stat. § 5/2-3.
- Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. 755 Ill. Comp. Stat. § 5/2-1.
If you want to read the law, 755 Illinois Statutes § § 5/2-2 to 5/2-4 cover parent-child relationships.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
Will the State Get Your Property?
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, cousins, or great grandparents.
Other Illinois Intestate Succession Rules
Here are a few other things to know about Illinois intestacy laws.
- Survivorship period. To inherit under Illinois’s intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. 755 Ill. Comp. Stat. § 5/3-1.
- Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. 755 Ill. Comp. Stat. § 5/2-1.
- Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive. 755 Ill. Comp. Stat. § 5/2-3.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
- Killing the deceased person. Someone who “intentionally and unjustifiably” kills you will not receive a share of your property. 755 Ill. Comp. Stat. § 5/2-6.
- Offenses against the elderly or disabled. If you are elderly or disabled, a person who commits certain offenses against you -- primarily those involving exploitation, abuse, or neglect -- will not receive a share of your property. (755 Ill. Comp. Stat. § § 5/2-6.2 and 5/2-6.6.)
- Advancements. If you give property to a relative during your lifetime, the value of the property is subtracted from your relative’s share only if you wrote this down at the time of the gift or your relative admits this in writing. 755 Ill. Comp. Stat. § 5/2-5.
To learn more about intestate succession, read How an Estate Is Settled If There’s No Will.
You can find Illinois’s intestate succession law here: 755 Illinois Statutes § § 5/2-1 to 5/2-5.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
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