Dying Without a Last Will and Testament in Illinois

Learn About the State's Laws of Intestate Succession

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When an Illinois resident dies without having made a last will and testament, the intestacy succession laws found in the Illinois statutes will dictate who inherits the deceased person's probate estate.

A will is a legal document that will serve to communicate the wishes for the disposal of personal property after the owner's death. The will is one part of a complete estate plan that may include tax planning and philanthropic giving as well as the identification of trustees. If an Illinois resident or a person owning property in the state passes away without a will, the determination of dividing assets will be left to the Illinois intestacy succession laws. Intestacy laws and the distribution of assets left after satisfying debts are the responsibility of the probate court.

Survived by a Spouse or Descendants

Here is what will happen under the Illinois intestacy laws if the deceased person is survived by a spouse and/or descendants (children, grandchildren, great-grandchildren, etc.):

  • Survived by a spouse and descendants - In this case, the surviving spouse will inherit one-half of the deceased spouse's probate estate and the children will inherit the remaining one-half, per stirpes.
  • Survived by a spouse and no descendants - In this case, the surviving spouse will inherit the deceased spouse's entire probate estate.
  • Survived by descendants and no spouse - In this case, the deceased person's descendants will inherit the entire probate estate, per stirpes.

No Surviving Spouse or Descendants

Under the Illinois intestacy laws, if the deceased person is not survived by a spouse or any descendants such as children, grandchildren, and great-grandchildren, a line of descendants is used.

In the case that the decedent is survived by parents, siblings, or the descendants of a deceased sibling, the estate is divided. The parents and siblings will equally inherit the deceased person's probate estate, but if one parent is deceased then the surviving parent will inherit a double share and if a predeceased sibling is survived by descendants, then the descendants will inherit the predeceased sibling's share, per stirpes.

Should there be no surviving parents, siblings, or the descendants of a deceased sibling, the lines of inheritance are extended to the paternal and maternal lines. The probate estate will be divided so that one-half will go to the deceased's paternal family and the other half will go to the maternal family. If there are no survivors on one side of the family, then the entire probate estate will go to the other side of the deceased person's family.

In the unlikely circumstance that the deceased person is not survived by any family members as described above, then the entire probate estate will escheat to the State of Illinois, and real estate will escheat to the county of residence.

Inheriting From an Illinois Intestate Estate

Even if you determine—based on the information above—that you are entitled to an intestate share of your relative's estate, you may not inherit anything. This situation may be due to your relative leaving all non-probate property.

Also, the debts your relative owed at the time of death may exceed the value of the probate estate making the estate insolvent. If you are not sure of your legal rights as an intestate heir in Illinois, then consult with an Illinois probate attorney to be sure.

Taxes on an Illinois Inheritance

Illinois is one of a handful of U.S. states that collect an estate tax. Aside from this, your inheritance may be subject to an estate tax at the federal level. You may also owe income taxes (state and federal) on certain types of assets you inherit.

The information contained in this article is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.

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  1. Illinois General Assembly. "Probate Act of 1975." Accessed June 20, 2021.

  2. Illinois General Assembly. "Illinois Estate and Generation-Skipping Transfer Tax Act." Accessed June 20, 2021.

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