If you die without a will in Illinois, the state’s intestacy statute decides who inherits your property, a probate court picks who administers your estate, and a judge chooses a guardian for any minor children you leave behind. The distribution follows a fixed order that starts with your spouse and descendants and works outward to parents, siblings, and more distant relatives. Unmarried partners, stepchildren who were never adopted, and close friends receive nothing, no matter how close the relationship was.
Who Inherits Your Property
Section 2-1 of the Illinois Probate Act sets the order. It applies to both real estate and personal property, and only after valid debts and claims are paid.
- Spouse and descendants: the spouse gets half, and the descendants split the other half per stirpes.
- Descendants but no spouse: everything to the descendants per stirpes.
- Spouse but no descendants: the spouse takes the entire estate.
- No spouse or descendants: equal shares to parents, siblings, and the descendants of any deceased siblings. A surviving parent whose spouse already died gets a double share.
- No close family: half goes to the maternal grandparents or their descendants, half to the paternal side.
- No heirs at all: the estate goes to the State of Illinois.
Per stirpes means each branch of the family gets an equal share, and if a child died before the parent, that child’s own children step into their place. So if someone dies leaving a spouse and two children, the spouse gets 50% and each child gets 25%. If one of those children had already died but left two kids, those grandchildren would split their parent’s 25% share and receive 12.5% each.1Justia Law. Illinois Code 755 ILCS 5 Article II – Descent and Distribution
The Spouse’s Award and Children’s Award Come First
Before any of those percentages apply, Illinois pays a statutory award to the surviving spouse and minor children to cover living expenses for the nine months after the death. It comes off the top and is protected from creditors.
The spouse’s award is at least $20,000, plus at least $10,000 for each minor child of the deceased who lived with the spouse at the time of death. A court can set it higher based on the family’s standard of living and the size of the estate, but not lower.2Illinois General Assembly. 755 ILCS 5/15-1
Minor children who did not live with the surviving spouse get their own award of at least $10,000 each. If there is no surviving spouse, each minor child gets at least $10,000, and an additional $20,000 is divided among all the minor children on top of that.3Illinois General Assembly. 755 ILCS 5/15-2
In a small estate, these awards can consume most or all of what is available, leaving little for the standard intestacy distribution.
Who Gets Nothing
The statute recognizes legal spouses and blood relatives, along with legally adopted children. Several people who might expect a share receive none:
- Unmarried partners. Illinois does not recognize common-law marriage, so no amount of shared life or shared finances creates an inheritance right.
- Stepchildren who were never legally adopted.
- Friends, charities, or any non-relative.
- In-laws, including a son-in-law or daughter-in-law.
A child conceived before death but born afterward is generally treated the same as any other child for inheritance purposes.
Many Assets Skip Intestacy Entirely
The intestacy rules only control property that would otherwise pass under a will. Several categories of assets transfer automatically to a named person or co-owner and never touch the probate estate:
- Joint tenancy property, including real estate, bank accounts, or investments held with right of survivorship, passes to the surviving co-owner.
- Life insurance, 401(k)s, IRAs, and annuities with a named beneficiary pay out directly.
- Payable-on-death bank accounts and transfer-on-death investment accounts go to the designated person.
- Assets held in a living trust are controlled by the trust document.
This is where families get surprises in both directions. If the largest assets had beneficiary designations or were jointly held, intestacy may apply to only a small pool of leftover property. On the other hand, an old beneficiary designation on a retirement account can send a six-figure balance to an ex-spouse regardless of what intestacy would have done.
The Court Appoints an Administrator
Everything else still goes through probate. Instead of an executor named in a will, the court appoints an administrator. Illinois gives priority to the surviving spouse or an adult child, though any qualified person who is at least 18 and a U.S. resident can petition for the role.4Justia Law. Illinois Code 755 ILCS 5 Article IX – Letters of Administration The administrator inventories assets, notifies creditors, pays valid debts and taxes, and distributes what remains, all subject to court supervision.
The administrator also has to post a surety bond. The amount is at least double the value of the personal estate when individuals act as sureties, or at least one and a half times that value when a surety company provides the bond. If the administrator takes possession of real estate, the court increases the bond to account for that income.5Illinois General Assembly. 755 ILCS 5/12-5 The premium comes out of the estate. A will can waive this requirement; intestacy cannot.
Creditor Deadlines and How Long It Takes
The administrator publishes notice to creditors once a week for three consecutive weeks in a local newspaper, and also mails notice to any creditors whose names and addresses are known or reasonably discoverable. Creditors then have at least six months from first publication, or three months from direct mailing, whichever is later, to file a claim. Anything filed after that is barred.6Illinois General Assembly. 755 ILCS 5 – Probate Act of 1975, Article XVIII
An outer limit applies regardless: all claims are barred two years after the date of death, even if the estate was never opened or notice never published.
Because the creditor notice period alone builds in at least six months, a straightforward intestate estate typically takes one to two years from filing to closing. Contested estates, or ones with fights over who should serve as administrator, run longer.
The Small Estate Shortcut
Illinois lets heirs skip formal probate when the personal property passing by intestacy or under a will does not exceed $150,000, excluding motor vehicles registered with the Secretary of State.7Illinois General Assembly. 755 ILCS 5/25-1 No letters of office can be outstanding or pending. The heir prepares a sworn, notarized affidavit and presents it with a certified death certificate to whoever holds the asset, such as a bank or brokerage, which is then authorized to release the funds.
The $150,000 cap applies only to personal property. Real estate cannot be transferred through a small estate affidavit, so a home or land still requires formal probate or another legal mechanism even if the rest of the estate qualifies.
Who Raises Your Minor Children
Illinois lets parents name a guardian in a will or in a separate written designation witnessed by two adults. Without that, the probate court chooses, guided by the child’s best interests.8Illinois General Assembly. 755 ILCS 5/11-5
If one parent is still living and parental rights have not been terminated, that parent generally retains custody and no guardianship proceeding is needed. When both parents are gone or unable to care for the child, the court evaluates prospective guardians based on their ability to provide a stable environment, their financial situation, and the child’s own preferences if the child is old enough to express them. Close relatives are often appointed, but the court is not required to choose family, and multiple relatives filing competing petitions can turn into a lengthy and expensive dispute.
Illinois Estate Tax at $4 Million
Dying without a will does not change your tax exposure, but it is worth knowing where the line sits. Illinois imposes its own estate tax on estates exceeding $4,000,000 in value. The exemption is not portable between spouses, so a married couple cannot combine their exemptions by default. If the total crosses $4 million, the tax applies to the entire taxable estate, not just the amount above the threshold, with a graduated effective rate.9Illinois Attorney General. Illinois Estate Tax Instruction Fact Sheet
A couple who owns a home in a desirable Chicago suburb, has retirement accounts, and carries life insurance can cross that line more easily than they might expect. Planning while alive is the only way to manage it.