What Happens When Someone Dies Without a Will in Illinois

When someone passes away without a valid will, they die “intestate.” In Illinois, this means state law—not the deceased person’s wishes—determines who inherits their property through the probate process. The results often surprise families and can create outcomes the deceased would never have wanted.

How Illinois Intestate Succession Works

We find that most people assume their spouse automatically inherits everything, but Illinois law (755 ILCS 5/2-1) actually dictates a strict division of assets based purely on bloodline and legal marriage. These statutes do not account for the quality of your relationships or your specific healthcare needs.

If You Have a Surviving Spouse and Children

Our team frequently handles cases where a surviving spouse is shocked to learn they are not entitled to the entire estate. Under Illinois intestate law, the division is strict:

• The Spouse receives 50% of the probate estate.
• The Children share the remaining 50% equally.

This split happens regardless of the children’s age. We see this create significant financial hardship for seniors, particularly if the surviving spouse needs those funds for long-term care or assisted living. Instead of having 100% of the couple’s assets available for their needs, half is legally diverted to the children immediately.

If You Have a Surviving Spouse but No Children

The surviving spouse inherits the entire probate estate. While this sounds straightforward, we often warn clients that without a will, the surviving spouse still faces the administrative hurdle of probate court to access assets solely in the deceased’s name.

If You Have Children but No Spouse

The children inherit the entire estate in equal shares. If one of your children has passed away before you but left their own children (your grandchildren), those grandchildren typically inherit their parent’s share. This concept is known legally as distribution per stirpes.

If You Have Neither Spouse nor Children

We look to the Illinois statute of descent and distribution to determine the heirs in this specific order:

1. Parents and siblings (shared equally, with special rules if one parent is deceased).
2. Grandparents.
3. Aunts, uncles, and cousins.
4. Next of kin.
5. The State of Illinois (only if absolutely no relatives are found).

Common Problems with Intestate Succession

The “Spousal Impoverishment” Risk

Our attorneys often advise seniors that dying intestate can jeopardize Medicaid eligibility for a surviving spouse. If the community spouse (the one still at home) only receives 50% of the assets because the other half went to the children, they may not have enough resources to pay for their own future care. Conversely, if an unexpected inheritance drops into the lap of a senior already on Medicaid, it could disqualify them from benefits until those funds are spent down.

Blended Families Face Complications

We see the most heartache in situations involving second marriages. Consider a scenario where a husband dies without a will, leaving behind a second wife and children from his first marriage. Under Illinois law, the wife gets half, and the children from the first marriage get the other half.

The stepchildren—who the wife may have helped raise—are not legally obligated to support her with their share. If the husband intended for his wife to have use of all assets during her lifetime, dying intestate completely defeats that goal.

Adult Dependent Children Risks

Many of our senior clients worry about adult children with special needs. If you die intestate, a disabled adult child could receive a direct inheritance that disqualifies them from Supplemental Security Income (SSI) and Medicaid. A proper estate plan would route these funds into a Third-Party Special Needs Trust, securing their benefits and their inheritance simultaneously.

Unmarried Partners Are Excluded

We cannot stress this enough: Illinois does not recognize “common law marriage” for inheritance purposes. You could live with a partner for 40 years, but if you die without a will, they are entitled to zero dollars from your probate estate. The assets will bypass them entirely and go to distant relatives like nieces or nephews you may rarely see.

Estranged Relatives May Inherit

Family dynamics are rarely simple. Under intestate succession, a child you haven’t spoken to in 30 years has the same legal right to your assets as the child who cares for you daily. Only a will or trust allows you to specifically disinherit estranged relatives.

What Property Passes Through Probate?

Our goal is often to help clients organize their assets so they avoid probate entirely, but intestate laws only apply to “probate assets.”

Assets that typically avoid intestate laws:

• Transfer on Death Instruments (TODI): A specific Illinois tool for real estate.
• Joint Tenancy with Right of Survivorship: Passes automatically to the co-owner.
• Beneficiary Designations: Life insurance, IRAs, and 401(k)s.
• Payable-on-Death (POD) Accounts: Bank accounts with a named successor.
• Assets in a Living Trust: These are governed by the trust document.

Assets subject to intestate succession:

• Real estate owned solely in your name.
• Bank accounts without a POD beneficiary.
• Vehicles and personal belongings.
• Any asset where the named beneficiary has predeceased you.

The Probate Process Without a Will

We guide families through this process regularly, and it is almost always more expensive and time-consuming than probating a will.

1. Petition for Letters of Office: Someone must ask the court to be the administrator.
2. Bond Requirement: The administrator must usually post a surety bond. In Cook County and surrounding areas, this often requires an annual fee paid to an insurance company to protect the heirs against theft by the administrator.
3. Heirship Determination: We must prove who the legal heirs are, sometimes requiring affidavits from disinterested parties who knew the family history.
4. The 6-Month Claims Period: Once notice is published, creditors have six months to file claims. Assets generally cannot be fully distributed until this period expires.
5. Distribution: The court orders distribution according to the rigid state formula.

The Small Estate Affidavit Exception

Our team looks for alternatives whenever possible to save you money. If the total value of the personal estate is under $100,000 and there is no real estate involved (or real estate is handled via TODI), Illinois allows heirs to use a “Small Estate Affidavit.” This bypasses the full probate court process, but strict rules still apply to how debts are paid and how funds are distributed.

Why Every Adult Needs a Will

We believe that a will is the most basic form of protection for the people you love. A properly drafted will allows you to:

• Protect Your Spouse: Ensure they have access to 100% of the assets if that is your wish.
• Waive the Surety Bond: This saves your estate hundreds or thousands of dollars in annual premiums.
• Appoint an Executor: You choose a trusted person rather than letting the court appoint someone.
• Specific Bequests: Give specific items (like jewelry or collections) to specific people.
• Avoid Family Fights: Clear instructions reduce the chance of siblings fighting over “who gets what.”

Beyond the Basic Will

While a will is essential, we often recommend comprehensive planning for seniors to cover incapacity as well.

• Revocable Living Trust: Keeps your affairs private and avoids the probate court entirely.
• Property Power of Attorney: Authorizes someone to pay your bills if you are in the hospital.
• Healthcare Power of Attorney: Designates a decision-maker for medical treatment.
• Living Will: States your preferences regarding life support and end-of-life measures.

These documents work together to ensure you are protected while you are alive, not just after you pass away.

Taking the Next Step

If you have been putting off estate planning, consider this: every day without a will is a day your family is exposed to the arbitrary outcomes of intestate succession. We find that creating a basic estate plan is more affordable and straightforward than most people expect.

At Skokie Probate Lawyer, we offer flat-fee estate planning with no hourly billing surprises. Our team takes the time to understand your family situation and creates documents tailored to your specific needs and wishes.

Call (847) 410-9131 to schedule a consultation. We will explain your options clearly and help you protect your family’s future.