What Happens if You Die Without a Will?

What happens to your assets if you die without a will (called dying intestate)? Illinois law provides a complex set of rules for the distribution of assets owned by people who die without wills. This statute also applies to assets not properly or clearly disposed of in wills. Your property does not necessarily go to the State of Illinois if you die without a will.

If you are married, any property that you own jointly with your spouse does not pass through your estate. Instead, your spouse is simply the sole surviving owner of that marital property after your death. But, if you are married and own any property solely in your own right, your spouse's share of your separate property is determined by whether you have children and how many of them have survived you. If you have surviving children, your spouse is entitled to roughly one-half of your estate, and your surviving children are entitled to split the other half of your estate equally between them, or, if not surviving, between their children.

The share that remains after your spouse's share, or the entire estate if you are unmarried, passes to your children. If no children survive you, the remaining share or the entire estate passes to your parents. If no children and no parents survive you, the remaining share or the entire estate passes to your brothers and sisters and the surviving children of any of your deceased brothers and sisters. If you still have no survivors in the successions described above, the estate then goes to any surviving grandparents under a detailed set of sub_rules that seeks to equalize treatment of your maternal and paternal grandparents. If you still have no survivors, final succession rules benefit your aunts, uncles, and their children. If no one survives you within this statutory scheme, then all of your property is transferred to the State of Illinois. This process is known as escheating.

The Illinois statute contains additional clarifying rules about how whole-blood and half-blood relationships are determined, the effect of adoptions, and what rights are recognized in individuals born after the decedent's death. A spouse who has deserted or killed his or her spouse loses all rights of inheritance under the statutory rules.

If you think you and your spouse own everything together, review your assets to be sure. Do you own a business? Unless your spouse is actually a partner or shareholder, the business may be yours alone. If you die without a will, your spouse may have to share control of the business with your children or other heirs. Do you have a bank account in your name alone? Have you inherited property that is not now jointly titled with your spouse? Anything not jointly owned will pass through the intestate succession described above if you die without a will.

If you die in an accident and have not prepared a will, a portion of any damages payable to your estate may not go to your spouse. Instead, that portion may pass directly to your children or other heirs. If your children are minors, the courts may require that their share of such damages be held for them until they reach their 18th birthdays.

Having a will gives you control of your assets. The identity of your heirs and the size of the share they each will be entitled to claim will be decided by law if you do not decide these important issues yourself.

© 2011 Lucas Law

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