Illinois Intestate Succession: Heirs, Order, and Per Stirpes

Under Illinois intestate succession, when a resident dies without a valid will, the Probate Act decides who inherits: the surviving spouse and descendants come first, then parents and siblings, then grandparents and their descendants, and finally more distant relatives. If a spouse and descendants both survive, the spouse takes half of the probate estate and the descendants split the other half. If only one group survives, that group takes everything. These shares apply only to what actually passes through probate, and only after debts and statutory family awards are paid.

Who Inherits and in What Order

Illinois works down a fixed list. The first category with a living member takes the estate; later categories inherit nothing.

Spouse and Descendants

If the deceased leaves both a spouse and one or more descendants, the spouse receives half of the probate estate and the descendants share the other half.¹ The 50/50 split does not change with the number of children. Two children each take a quarter of the estate; five children each take a tenth.

A surviving spouse with no descendants inherits the entire probate estate, no matter its size. Descendants with no surviving spouse take the full estate in equal shares.¹

Parents and Siblings

With no surviving spouse and no descendants, the estate goes to the deceased person’s parents and siblings in equal shares, with one adjustment: if only one parent survives, that parent takes a double share.² So a person survived by one parent and two siblings leaves an estate divided into four equal parts: two parts to the parent, one to each sibling.

A sibling who died before the deceased is represented by their own children, so nieces and nephews step into their parent’s share. Illinois treats half-siblings identically to full siblings; the statute explicitly puts relatives of the half blood on equal footing with relatives of the whole blood.²

Grandparents and Beyond

If none of the above survive, the estate splits in half between the maternal and paternal sides. On each side, surviving grandparents take first; if none, their descendants (aunts, uncles, cousins) inherit per stirpes.¹ If one side has no takers at all, the other side inherits the whole estate.²

If nobody inherits at that level, the search moves to great-grandparents and their descendants under the same maternal/paternal split.¹ At that distance, heirs are often second cousins with no relationship to the deceased, and tracing the family tree can take a long time.

When No Heirs Exist

If no living relatives can be found, real property escheats to the county where it sits, personal property escheats to the county where the deceased lived, and anything else goes to the State Treasurer under the Revised Uniform Unclaimed Property Act.² Courts require an exhaustive search for heirs first, so escheat is rare.

How Per Stirpes Divides a Deceased Heir’s Share

When descendants inherit, Illinois uses per stirpes distribution. Each branch of the family tree gets one equal slice, and if the person at the head of that branch has already died, their share drops to their own children.¹

Say a resident had three children and one died first, leaving two grandchildren. The estate still splits into three shares. The two surviving children take one share each. The deceased child’s share does not get redistributed to their siblings; it passes to their two children, who take half of that share each. The same logic runs down the tree to great-grandchildren, and up the tree when nieces and nephews inherit in place of a deceased sibling.

Who Counts as a Child for Inheritance

Whether a particular family member can inherit at all depends on how Illinois classifies the relationship.

Adopted Children

A legally adopted child inherits from the adoptive parent and the adoptive parent’s family exactly as a biological child would. Adoption generally cuts off inheritance rights from biological parents and their relatives, with two exceptions: if a biological parent died before the adoption, the child still inherits from that parent’s family, and if the adopting parent is the spouse of a biological parent (a stepparent adoption), the child remains a descendant of both natural parents.³ Someone adopted after age 18 who never lived with the adoptive parent as a minor inherits from that parent but not from that parent’s other relatives.

Children Born Outside of Marriage

A child born outside of marriage inherits automatically from the mother and the mother’s family. To inherit from the father, the father must have acknowledged paternity during his lifetime or been adjudged the father by a court.⁴ A certified copy of a paternity judgment entered during the father’s life is enough proof; otherwise, paternity must be shown by clear and convincing evidence. If the parents later marry and the father acknowledges the child, the child is treated as a lawful child of the father.

Stepchildren and Foster Children

Stepchildren and foster children who were never legally adopted have no rights under Illinois intestacy law. A stepparent who wants a stepchild to inherit must either adopt them or leave a will. This catches many blended families by surprise.

Assets That Skip Intestate Succession Entirely

The shares above apply only to the probate estate. Several of the most valuable assets a person owns typically transfer outside probate to a named beneficiary or surviving co-owner, and the Probate Act does not touch them:

Property held in joint tenancy with right of survivorship passes automatically to the surviving co-owner when one owner dies. This applies to real estate, bank accounts, and investment accounts.
Life insurance and retirement accounts pay out to the named beneficiary on the policy or account, not to the probate estate. If no valid beneficiary is named, the money may fall back into probate.
Bank accounts with a payable-on-death designation and investment accounts with a transfer-on-death designation pass directly to the named beneficiary on presentation of a death certificate.
Assets titled in a revocable living trust are distributed according to the trust, not intestacy law.

The practical effect is significant. If a married couple owns their home in joint tenancy and the deceased spouse’s other major assets are a retirement account and a life insurance policy with the spouse as beneficiary, very little may pass through probate. Children who expected a 50% intestate share may find that almost nothing is actually being divided.

What Gets Paid Before Heirs

Illinois distributes intestate shares only after just claims against the estate are paid.¹ Heirs receive what remains, not the gross estate.

Debts and Administration Costs

Claims against the estate follow a strict priority order set by statute. Funeral, burial, and administration costs come first, then the spouse’s and children’s statutory awards, then federal debts, then final-illness medical expenses and limited employee wages, and so on through state and local government debts and general creditors.⁵ The administrator must publish notice to creditors once a week for three consecutive weeks, and creditors have at least six months from the first publication to file a claim.⁶ That claim window is a large part of why intestate estates take months to close.

Spouse’s and Children’s Awards

The surviving spouse is entitled to a court-set award for nine months of support, with a $20,000 statutory minimum. If minor children of the deceased live with the spouse, the award increases by at least $10,000 per child.⁷ An adult child who was financially dependent on the deceased and lived with the surviving spouse may qualify for a $5,000 minimum award. The spouse’s award is exempt from creditor claims.

Minor children who did not live with the surviving spouse are entitled to their own award of at least $10,000 each. If no spouse survives, the minor children share an aggregate award of at least $20,000 in addition to the individual $10,000 minimums.⁷ A financially dependent adult child who would otherwise become a public charge can receive a $5,000 minimum award.

These awards can consume much of a modest estate. A $60,000 estate with a surviving spouse and two minor children at home could see $40,000 or more paid out through statutory awards before any intestate distribution occurs.

Skipping Probate for Small Estates

Not every intestate estate needs a full probate case. If the personal property passing to heirs (excluding motor vehicles registered with the Secretary of State) is worth $150,000 or less, an heir can use a small estate affidavit to collect the assets.⁸ The affidavit works only for personal property, not real estate. It cannot be used if letters of office have already issued, if there is a known dispute over heirship, or if there are unpaid claims other than funeral expenses. The person who signs is personally responsible for the deceased person’s debts up to the value of what they collect.

Banks and brokerages are required to honor a properly completed affidavit, which saves families months of court time and legal fees on modest estates.

Who Manages the Estate

Because no will names an executor, the probate court appoints an administrator. Illinois sets a priority list for who has the first right to serve:⁹

The surviving spouse, or someone the spouse nominates
The children, or someone they nominate
Grandchildren
Parents
Siblings
The nearest other relatives
The Public Administrator, if no family steps forward
A creditor of the estate, as a last resort

The administrator inventories assets, publishes notice to creditors, pays debts and expenses, and then distributes what remains under the intestacy rules. The court may require a surety bond. When multiple people at the same priority level want the role, the court decides between them or appoints co-administrators.

1
Justia Law. Illinois Code 755 ILCS 5 – Probate Act of 1975, Article II
2
Illinois General Assembly. Illinois Code 755 ILCS 5/2-1 – Rules of Descent and Distribution
3
Illinois General Assembly. Illinois Code 755 ILCS 5/2-4 – Adopted Child
4
Illinois General Assembly. Illinois Code 755 ILCS 5/2-2 – Child Born Out of Wedlock
5
Illinois General Assembly. Illinois Code 755 ILCS 5/18-10 – Classification of Claims Against Decedents Estate
6
Illinois General Assembly. Illinois Code 755 ILCS 5 – Probate Act of 1975
7
Justia Law. Illinois Code 755 ILCS 5 – Probate Act of 1975, Article XV – Spouse and Child Awards
8
Illinois General Assembly. Illinois Code 755 ILCS 5/25-1 – Small Estate Affidavit
9
Illinois General Assembly. Illinois Code 755 ILCS 5/9-3 – Preference in Appointment of Administrator