When a person dies without leaving a will to instruct how their estate should be disposed of, that is legally known as intestacy. In these circumstances, the person that passed away is said to have died “intestate,” meaning without a will.
Importantly, each state has its own laws which govern the distribution of a deceased person’s property when there is no valid will that can be introduced into the probate court. Additionally, state laws will distinguish between total intestacy and partial intestacy.
Intestate distribution is the process by which a deceased person’s assets are distributed to their loved ones upon their death. Importantly, how a person’s property is distributed via intestate distribution will be dependent on the laws of the locality in which the person resided upon their death.
Total intestacy refers to when a person dies with no valid will ever drafted at all. Alternatively, partial intestacy refers to when a person dies with a will, but the will does not dispose of all the property that the decedent owns.
It is important to note, that in regards to intestate distribution, many states will treat domestic partners differently in cases of intestacy when compared to legally married partners. Additionally, some states do not have well-defined statutes that explain the rights of domestic partners, especially in same-sex relationships. Several states consider all registered partners to be the same as spouses, but this is not true for every state.
However, most states have rules intended to prevent people who have malice towards the deceased from receiving an inheritance via intestate distribution. An example of this would be how anyone who is responsible for the death of a deceased person, or who did not pay child support for a child that has died, cannot profit from their deaths under intestacy laws.
Generally speaking, courts will attempt to split up the following assets in a person’s intestate estate upon that person’s death:
- Real estate holdings;
- Life insurance proceeds;
- Bank accounts;
- Security; and
- Personal property of the decedent, once all debts of the estate have been paid off.
State laws, in particular probate courts, will generally determine who is the personal representative or executor to the intestate estate. Generally speaking, surviving spouses are most commonly the first choice for an executor. As was previously mentioned, in several states, domestic partners have the same rights as surviving spouses, but this is not always true. Adult children are generally next in line to receive under intestate distribution.
It is important to note that being a personal representative may involve resolving legal disputes if beneficiaries fight about the estate or contest the will. Additionally, personal representatives are generally held personally liable for any claims of fraud or mismanagement of the estate by the beneficiaries.
What Is Intestate Succession?
Intestate succession refers to how the state will distribute a decedent’s estate when they die without leaving a will. To reiterate, each state has different laws regarding how the estate will be distributed when there is no will. Generally, the spouse has the first right; after the spouse, the descendants are next to inherit property, with most states following each child’s line until there is a survivor.
When the decedent leaves no children, the next people to take possession of the property are generally the decedent’s parents. If the decedent’s parents are no longer alive, the next set of heirs would be any siblings, then the decedent’s nephews and nieces, and so on.
If the decedent does not have any close family members, many laws state that the person who will inherit is the next of kin. Generally speaking, the next of kin is determined by who is closest to the decedent on their family tree.
When there are no eligible family members, the decedent’s property will generally escheat, which means it will go to the state. This is seen by many as an unfavorable result of the property distribution, and is one reason why many people have a will in place before they die.
The per capita approach, which is followed by some states, counts all of the decedent’s surviving heirs and gives each heir an equal share. This means that the more heirs that a person has, the less each heir would receive.
The per stirpes approach, which is followed by many other states, divides the estate property differently. If the decedent left three children, each would take an equal share; however, if one of those children is no longer alive at the time, the one-third share of that child would be shared equally by that child’s heirs.
Generally speaking, many states remove the adoptee from the families of their genetic parents and consider the adoptee as part of the adoptive parents’ family for legal purposes. Some states place the child in both families for estate inheritance purposes, while other states allow the adopted child to inherit from both the genetic and adoptive parents. However, these states may cut off the genetic parents from inheriting from the child.
How Can the Surviving Spouse in Illinois Receive Property by Intestate Succession?
Intestate succession is governed by Illinois laws which distribute the property to the deceased’s heirs in a predetermined order. As such, any property contained within the decedent’s estate may be transferred to their heirs or surviving spouse, as long as the property was not actually disposed of by a will. Additionally, the intestate estate will only be divided once all just claims against the estate have been fully paid.
Illinois regulates the order of succession to an intestate estate as follows:
- First, if there is a surviving spouse and also a descendant of the decedent, then one half of the entire estate to the surviving spouse and one half to the decedent’s descendants per stirpes (i.e. equally between the remaining heirs);
- If there is no surviving spouse, but there is a descendant of the decedent, then the entire estate goes to the decedent’s descendants per stirpes;
- If there is a surviving spouse, but there are no descendant of the decedent, then the entire estate to the surviving spouse; and
- If there is no surviving spouse or descendant, but there is a parent, brother, sister or descendant of a brother or sister of the decedent, then the entire estate to the parents, brothers, and sisters of the decedent in equal parts, allowing to the surviving parent (if one is dead) a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living.
If there is no surviving spouse, descendant, parent, brother, sister or descendant of a brother or sister of the decedent, then the intestate distribution gets even more confusing. At that point, the probate code for the State essentially looks for anyone related to the decedent. If none can be found, then the intestate estate would escheat to the state, with the real property going to the local county and the rest of the estate going to the state.
As can be seen, the surviving spouse’s interest in an Illinois estate largely depends on whether the deceased and the spouse had children, as well as whether the deceased had children separate from the surviving spouse. When there are no children, the surviving spouse will receive the entire estate.
Is the Immediate Family of the Deceased in Illinois Treated Differently from Other Descendants?
In short, yes. The immediate family of the deceased in Illinois is considered to be their immediate family and descendants. As such, they will stand to inherit a portion of the intestate estate as outlined above when their biological parent dies.
What Other Parties May Have an Interest in the Intestate Estate in Illinois?
As can be seen, there are numerous parties that stand to have an interest in a person’s intestate estate. The parties that may have an interest include the surviving spouse, children, grandchildren, grandparents, cousins and other similarly related parties, and even the state and county.
Should I Seek an Illinois Attorney for an Intestate Estate?
If you believe that you should inherit property from someone who died without leaving a will, an experienced Illinois will lawyer can help you determine your legal options so that you will receive any interest of the intestate estate that is owed to you.
Additionally, an experienced attorney will also be able to represent you in court, as needed, should a legal dispute arise. Finally, if you wish to avoid intestate succession, then you should contact an attorney to assist you with drafting a will that is valid in accordance with Illinois state laws.
