Dying without a will is called dying “intestate.” Illinois, like most states, has an intestate law that spells out what will happen to the estate of someone who dies without creating a will. Basically, after certain creditors get paid, the assets of the deceased are divided according to the plan set by this law. Here is an overview.
First, if the deceased has a living spouse and children, the spouse gets half and the children get the other half. The children of the deceased divide their half equally. If any child is no longer living, that child’s portion goes to their children (the grandchildren of the deceased).
If there are no children, then their spouse receives the entire estate. If there is no living spouse, but there are children, the children receive the entire estate, divided evenly. Again, if any of the children died before the deceased, their children (the grandchildren) get their parent’s portion.
If the deceased is not survived by a spouse or children (or other descendants), then the estate goes to the closest living relatives. Their parents and siblings each get an equal portion. If only one parent is living, they get both parental portions of the estate. If any sibling is deceased, their children get their portion.
If no parents or siblings are living, the estate goes to the grandparents and their descendants, which are the aunts, uncles and cousins of the deceased. The estate is shared equally between the mother’s and father’s side of the family.
These are the people who the law assumes are your closest relatives, not taking into account what the you actually might have wanted. If you fail to make a valid will during your lifetime, the law steps in and your wishes are largely irrelevant.
If no living relatives exist in any of these categories, then the estate can end up as the property of the county where the deceased was living when they died. This is probably why some people say that the state takes your property if you don’t make a will. It’s not entirely true, but in a rare case it is possible.
Written by Michael Helfand