Intestate Distribution

What Happens if I Die in Illinois Without a Will?

If you die without a will in Illinois, this means you have passed “intestate.”  When this happens, state intestacy laws determine how your assets are distributed, including bank accounts, securities, real property, and other possessions you own at the time of death.[1]

Under Illinois’ intestacy laws, your estate will pass to family members or escheat (be transferred) to the state (if you have no known relatives).  This can be problematic and potentially devastating, especially if you are not married to your partner or if you intend for a nonrelative or friend to inherit your assets.

Under intestacy, unmarried partners and friends (no matter how close) will have no legal claim or right to your estate, potentially leaving them with nothing. 

For this reason, it is essential to execute a will and develop a thoughtful estate plan that can ensure your loved ones are cared for, and your assets are distributed in accordance with your wishes.

At RNH Law, we help Frankfort residents create estate plans and wills that account for all loved ones, not just those related by blood.  As an experienced estate planning attorney, I can evaluate your objectives, answer any questions you may have, and utilize estate planning tools (such as a last will and testament, pour-over wills, trusts, advance directives, and more) to protect your assets from passing intestate.

If I Die Without a Will, Does Everything Pass by Intestate Succession?

Not all property will pass intestate; instead, only assets that would transfer through a will are affected by intestacy laws.  This usually applies to property and possessions held solely in a decedent’s name.

The following are several assets to which Illinois intestacy laws do not apply:

  • Life Insurance Proceeds. Life insurance proceeds will automatically transfer to the beneficiaries listed in the policy.
  • IRA, 401(K), and Other Retirement Accounts. Unless payable to an estate, certain investment accounts will pass to the parties named by the owner in the plan.
  • Transfer-on-death Accounts. Transfer-on-death accounts are designed to transfer ownership upon the death of a party automatically.  For example, if you have an account containing $100,000 in securities and name a child as the account beneficiary, it will transfer to that child upon your death.
  • Pay-on-death Bank Accounts. Like transfer-on-death accounts, a person can instruct a bank to automatically transfer a bank account upon their death, bypassing probate and intestacy succession.
  • Property Transferred to a Trust. When a trust is created, assets are transferred to the trust, which holds legal title.  As such, the property is no longer part of the estate and will not pass intestate.
  • Joint Property. Property that is owned by two parties in joint tenancy or tenancy by the entirely will automatically transfer to the surviving co-owner.

Who Will Inherit My Assets When I Die If I Do Not Have a Will?

Under Illinois law, asset distributions depend on who is alive at the time of your death and the familial relationship of each party.  The following is an overview of how property is distributed:

If you have: Who Inherits: 
Children but no spouse Children inherit the entire estate in equal shares
Spouse but no children Spouse inherits the estate
Spouse and children Spouse inherits half of the estate; children equally split the remaining half of the estate
Parents but no spouse, children, or siblings Parents inherit the estate
Siblings but no spouse, children, or parents Siblings inherit the estate
Parents and siblings Parents and siblings inherit the estate in equal shares (if only one parent is living, the surviving parent receives a double share)
Grandparents but no spouse, children, parents or siblings Grandparents inherit the estate in equal shares

 

Will My Child Inherit Part of My Estate If They are Adopted?

Children are entitled to inherit a share of your intestate property; however, under Illinois law, they must be legally classified as a child.  There are many unique situations (such as adoption, artificial insemination, children conceived but not born, etc.) in which determining whether an adolescent is a legal child can be challenging.

The following are some common situations:

  • Adopted Children.  Adopted children are treated the same as biological dependents.  As such, they will inherit an equal share.[2]  Children who are adopted by another family will not receive a share unless the adoption decree specifies otherwise.  If a biological parent would like for a child whom they put up for adoption to inherit from their estate, a clause can be included in the adoption decree providing for a continuation of inheritance rights.[3]
  • Foster Children; Stepchildren.  Unless a child is formally adopted, they will not automatically receive a share of an estate.
  • Children Born Outside of Wedlock.  If a child is born out of wedlock, they are entitled to a portion of an estate if a paternal connection is established.
  • Posthumous Children.  Children conceived but not born until after a death will receive an equal share.[4]
  • Artificial Insemination.  A child born through artificial insemination will inherit assets if a party willingly consents to the use of their biological matter, and the child is born within 36 months of their death.[5]

In complex situations, it can be significantly easier to implement an estate plan than leave asset distribution up to the courts.  If you are concerned that your child may not inherit from your estate, I can help develop a plan that will provide for the future welfare of your child.

Can I Disinherit a Child in Illinois?

In Illinois, individuals have a right to disinherit children without disclosing a reason.  If you would like to exclude your child from inheriting from your estate, you must make it crystal clear that this is your intent.  This can be accomplished by including a statement in a will that specifies you are purposefully not providing for a child under the terms of the document.

A disinherited child can attempt to contest a will by alleging that their parent was not of sound mind when they executed the document.  Therefore, in these situations, I not only help draft the important disinheriting clauses, but I also provide proof of you being of sound mind when the documents are signed through witness attestation.

Call Our Office to Schedule a Free Consultation with Will and Estate Planning Attorney Ryan Hejmanowski to Learn More!

To learn more about intestate succession, please call my office at 708-279-4050 to schedule a complimentary consultation.  If you become a client, I can meet with you to understand your estate and objectives, explain the possible estate planning options, and help you develop a plan that provides for your loved ones as you intend.  Do not leave your estate distribution up to state law – call me today!

 


[1] 755 ILCS 5/2-1.

[2] 755 ILCS 5/2-4.

[3] 755 ILCS 5/2-4.

[4] 755 ILCS 5/2-3.

[5] 755 ILCS 5/2-3.

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