When a person dies their assets (all their stuff) go to someone. A will is an instrument that directs a person called an administrator how the deceased’s assets should be distributed i.e. who gets what. When a person dies and there is no valid will, the assets of the deceased are distributed according to what is referred to as “intestate succession” also called “intestacy laws (as opposed to the testacy laws governing situations where a valid will is present.) Intestacy laws vary by state.
Illinois’s intestate succession works a lot like most other states. The assets are passed to family members who are prioritized according to the statute. Before we determine how the assets are distributed it is important to note that not all assets a deceased has go into the “pie” that is doled out to survivors. Assets that are not included in the pie (the intestate estate) include:
Life insurance proceeds don’t go into the pie. Rather, they are paid directly to the named beneficiary of the policy unless the decedent’s estate is named as the beneficiary.
Various sorts of jointly held property doesn’t enter the pie and will be accessible by the joint owner(s). Examples include property held as joint tenants with rights of survivorship or joint banking accounts.
Retirement accounts like 401(k)s and IRAs will normally have a named beneficiary, similar to life insurance policies
Property held in a trust (in some circumstances)
After a determination of what assets comprise the pie, you must then pay all claims against the estate i.e. outstanding bills. Anything left over is then paid out to family members (known as heirs) according to the priority scheme outlined in the Illinois intestacy statute:
The Surviving Spouse: If there’s a surviving spouse, generally speaking they will take the biggest piece of the pie. The amount of pie varies depending on whether or not there are descendants of the deceased. It is important to note that the descendant of the decedent does not necessarily have to be the descendant of the surviving spouse.
If there are no surviving descendants and just the surviving spouse, the surviving spouse takes 100% of the pie. If there is a surviving descendant i.e. a child of the decedent, the pie is split 50% to the surviving spouse and 50% to the surviving descendant. If there is more than one descendant of the decedent, the 50% will be divided evenly amongst the descendants.
The Descendants of the Deceased: The children or grandchildren of the deceased. If there is no surviving spouse but there are children, they take the pie 100% split amongst them. If there is no surviving spouse and no children but there are grandchildren, they are descendants and will split 100% of the pie. What happens if there are a mixture of children and grandchildren? The assets pass in equal parts to each child of the deceased. Where one of these children of the deceased is dead but has children, the share that was to go to the deceased’s child instead passes in equal parts to the deceased’s grandchildren.
Parents, Siblings or Descendants of Parents or Siblings: If there is no surviving spouse and no descendants of the deceased, the assets are to be split amongst these parties equally. If the parent is solo, they get two shares.
Grandparents or Descendants of Grandparents
Great-grandparents or Descendants of Great-grandparents
Nearest Surviving Kindred (blood relative not discussed above)
If there is no kindred the pie goes to the Illinois county where the decedent resided.
This is merely a brief overview of “who gets what.” There are a number of additional considerations involved with intestate succession. For instance there’s the question of who the administrator of the estate is i.e. who doles out the pie. In the case of Illinois, the order of preference parallels the above priority scheme i.e. surviving spouse at the top, children, grandchildren, siblings. Where there are two plus people with equal preference and desire, a judge will hear the case and has the discretion to choose one or multiple persons to serve as administrator.
There are questions regarding each of the above like what happens if the child is a step child or if the surviving spouse and the decedent are divorced. Another question is what happens if an heir kills someone in order to collect the deceased’s inheritance. Then there’s the question of whether an heir is allowed to get some of their allotted money in advance of it being distributed. These are all legitimate concerns beyond the scope of this article.
Hopefully this will give you a rough understanding of what happens if you die without a will and provides a picture of who gets what if there is not a will.
This article was produced by me, John James Crone III “JC3”. My website is [http://johnjc3.com/]. I am an attorney based in Orlando, FL with over 5 years experience in internet marketing and website development. Practicing law requires concise, clear communication. Sales and marketing requires persuasive skills to be successful. I have both.