what are state intestacy laws?

How Is an Illinois Estate Divided Without a Will? | Illinois Intestacy Laws

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
October 9, 2019

In this article we explain how an estate is divided if the deceased did not have a will. “Intestacy Laws”, “Non-Probate Estate Division”, and “Naming an Administrator”

Intestacy Laws in Illinois Explained

A person who dies without a will is known as “intestate.”  Illinois statutes contain “Intestacy Laws” that determine who receives a deceased person’s assets in the absence of a valid will. These laws apply only to probate property; as a review, probate property must be distributed by the court and include assets which are owned solely by the deceased individual and which has no designated beneficiary. These items include personal property, bank accounts and investments. Frequently, life insurance, payable on death accounts, retirement accounts and property held in joint tenancy are not subject to intestate laws and instead go to a named beneficiary.

Intestate laws vary depending on the state and there can be cases where more than one state’s intestate laws apply to a situation, such as if someone resides in one state but owned property in another. In Illinois, the intestate laws are as follows:

  • Deceased person is survived by spouse and descendants: the spouse receives half the property and the children split the remaining half
  • Deceased person is survived by spouse and no descendants: the spouse receives the entire probate property
  • Deceased person is survived by descendants and no spouse: the descendants receive the entire property
  • Deceased person is only survived by parents or siblings: the parents and siblings equally inherit the estate; however, if one parent is deceased, the other parent receives a double share of the estate.
  • Deceased person is not survived by parents, brothers, sisters, or descendants of brothers and sisters: estate is split equally between maternal and paternal sides of the family
  • Deceased person is survived by no one: estate is left to the state of Illinois

The laws also call for the estate to pay any outstanding debt or taxes of the deceased person before making any distribution to heirs.  

Estate Division Outside of Probate in Illinois

Some property, such as investment accounts and transfer on death accounts, have a named beneficiary whether there is a will or not. In these cases, the beneficiary receives the property. If the deceased person owned a trust and named someone else as the trustee in event of death, that property also goes straight to the beneficiary regardless of whether or not there is a will.  

Naming an Administrator for an Illinois Estate

If a person dies without a will, he or she has also likely not named an executor for the estate. In this case, the family members closest to the deceased share the right to appoint an administrator for the property. If all family members agree about who should be the administrator, that person is appointed. If there is disagreement, it will go to court and a judge will determined who the administrator should be.

A will enables a person to dictate exactly who gets what upon the person’s death, this is a useful tool for distributing an estate and it is recommended that everyone creates a will while they are living. Property distribution that has to be configured after a person has died can result in property being split in ways that the deceased person would not have wanted.

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