In Illinois, What Happens to Property Without a Will?

 Posted on August 04, 2013 in Family Law

Each state has different laws when it comes to distribution of property after death. In most cases, property distribution is straightforward because either there is little left to distribute or the deceased had a will. Alas, life is unpredictable and it is not uncommon for a person to die without a will, in which case the Illinois Probate Act governs distribution. If there is no will, a person is said to have died intestate, and here is how the Illinois laws distribute any property: First, the estate must pay all the outstanding debts and liabilities (there are some exceptions, but they are beyond the scope of this blog). Second, if there is a surviving spouse and children, half of the estate would go to the spouse and the other half would go to the children equally and per stirpes (see below for the meaning of ‘per stirpes’). As a side note, the surviving spouse only refers to current spouses and does not include ex-spouses; however, surviving children include those from the current and any prior marriages, as well as adopted children. If there is no surviving spouse, the estate goes to the children per stirpes. Per stirpes means that the property is divided equally at the first generation of children and the shares follow down each line until there are no more descendants. For example, let’s suppose the deceased has three children, A, B and C. Assume that upon death, A and B survived the deceased, but C did not. Further, assume that C left behind two children. In a per stirpes system, A and B would each get 1/3 of the estate, and C’s children would divide the 1/3 that would have gone to C. In other words, once the estate is divided at the first level, it flows down the line. Illinois inheritance laws are complicated and some would argue, arcane. If you have questions, consult an experienced Illinois estate planning attorneys.