Intestate Succession in Illinois

If you pass without a will in Illinois, your assets will go to your closest relatives under state “intestate succession” laws. Here is some information about how intestate succession works in Illinois. 

Only assets that would have passed through your will are affected by intestate succession laws. Generally, this would include assets that you own alone, in your own name. 

Most valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples: 

• Property you’ve transferred to a living trust 
• Life insurance proceeds 
• Funds in an IRA, 401(k), or other retirement account 
• Securities held in a transfer-on-death account 
• Real estate held by a transfer-on-death deed 
• Payable-on-death bank accounts, or 
• Property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have made a will. 

Who Gets What in Illinois? 

Under intestate succession, there are certain factors to decide who gets what, like, whether or not you have living children, parents, or other close relatives when you pass. Here’s a quick overview: 

The Spouse’s Share in Illinois 

In Illinois, if you are married and you pass without a will, whether or not you have living descendants, children, grandchildren, or great-grandchildren, the court will decide what your spouse will get. If you don’t have any living descendants, then your spouse will inherit all of your intestate property. If you do have living descendants, your spouse and them will split your intestate property 50/50. 

Example: Grace is married to Carl and also has a 13-year-old daughter from a previous marriage. Grace owns a house in joint tenancy with Carl, plus $300,000 worth of additional, separate property that would have passed under a will if Grace had made one. When Grace dies, Carl inherits the house outright; it is not intestate property. Carl also inherits $150,000 worth of Grace’s additional property. Grace’s daughter inherits the remaining $150,000 share of Grace’s property. 

Children’s Shares in Illinois 

If you pass without a will in Illinois, your children will receive an “intestate share” of your property. The size of each child’s share will depend on how many children you have and also whether or not you are married.

In order for children to inherit from you under the laws of intestacy, Illinois must consider them your children, legally. For most families, this is not a complicated issue. But it’s not always easy to see.

Here are some things to remember: 

• Adopted children. Children you have adopted legally will receive an intestate share, just as your biological children do.

• Foster children and stepchildren. Foster children and step-children you never legally adopted will not automatically receive a share. 

• Children placed for adoption. Children that you put up for adoption and who were legally adopted by another family will not receive a share unless the decree of adoption specifically provides for continuation of inheritance rights. If, however, your biological children were adopted by your spouse, that won’t affect their intestate inheritance.

• Posthumous children. Children conceived by you but were not born before you passed will receive a share.

• Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will still receive a share of your estate if you acknowledged your paternity during your lifetime or after you passed a court establishes your paternity.

• Artificial insemination. A child born through artificial insemination after you passed will receive a share if you have consented in writing to the use of your biological matter and the child is born within 36 months of your death.

• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share.

This can be a complex area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. 

Will the State Get Your Property? 

If you pass without a will and you have no family, your property will “escheat” into the state’s coffers. However, this very is rare because the laws are designed to give your property to anyone who was even remotely related to you.

For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, cousins, or great grandparents. 

Other Illinois Intestate Succession Rules 

Here are some other things you should know about Illinois intestacy laws. 

• Survivorship period. To inherit under Illinois’s intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.

• Half-relatives. “Half” relatives inherit as if they were “whole.” Which means that, your sister that you share a father with, but not a mother, will have the same right to your property as she would if you had both parents in common.

• Posthumous relatives. Relatives conceived before, but are born after, you die inherit as if they had been born while you were still alive.

• Immigration status. Relatives entitled to an intestate share of your property will inherit even if they are not legally citizens of the United States. 

• Killing the deceased person. Someone who “intentionally and unjustifiably” kills you will not receive a share of your property.

• Offenses against the elderly or disabled. If you are elderly or disabled, a person who commits certain offenses against you, primarily those involving exploitation, abuse, or neglect, will not receive a share of your property.

• Advancements. If you give property to a relative during your lifetime, the value of the property is subtracted from your relative’s share only if you wrote this down at the time of the gift or your relative admits this in writing.

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