If a decedent dies without a Will, he or she is said to have died “intestate”. The probate assets of the decedent pass to the heirs (after the payment of any debts, taxes, claims and costs of administration) pursuant to a distributive scheme created under the laws of the jurisdiction in which the decedent was legally domiciled. This process is overseen by a probate court. In Illinois, if a decedent dies intestate, then the probate assets are distributed as follows:
Decedent is survived by | Intestate share |
---|---|
Spouse only | Entire estate to spouse. |
Spouse and Descendants | One-half to spouse and one-half to descendants. |
Descendants | Entire estate to descendants. |
Parents and/or Siblings | Decedent's parents, brothers, and sisters in equal parts. If one parent predeceases the decedent, the surviving parent gets a double portion. If a brother or sister predeceases the decedent, his or her descendants take the predeceased sibling's share. |
Grandparents and/or their Descendants | Half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents, or either of them if both are deceased. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half. |
Great Grandparents and/or their Descendants | Half of the estate passes to the decedent's paternal great-grandparents equally if both survive, or to the surviving paternal great-grandparent, or to the descendants of the decedent's paternal great-grandparents, or either of them if both are deceased. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving great-grandparent or descendant of a great-grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half. |
Remaining Family Members | Decedent's nearest kin in equal degree. |
State of Illinois | If there is no taker under any of the above provisions, the intestate estate reverts (escheats) to the state of Illinois. Real estate in the estate generally goes to the county where the real estate is located. Personal property in the estate generally goes to the county where the decedent was a resident. |
For most families, the above distribution scheme is not the best choice. Many families would like to see their assets be distributed to or held in trust for the surviving spouse, and then, upon that spouse’s death, to their children (or trusts for their benefit). If the decedent dies intestate survived by minor children (and no spouse), a guardian will be appointed by the court to represent the children’s interests with respect to the probate estate. If there is no Will naming a guardian(s) of the minor children, the court may choose a guardian from its roster. If the decedent is also survived by a spouse, then the courts will typically appoint the spouse as the guardian, but is not required to do so if it is against the best interests of the minor child.