What happens in an Illinois Probate Estate with no Will?

In Illinois (as in most states), an individual can create a will to direct his/her affairs upon his/her death.  In the event that the deceased person did not prepare a will (or if a will is deemed to be invalid), then the estate is directed by the Illinois Probate Act.  Since most of the procedures in the Probate process are the same with or without a will, visit our general page on Illinois Probate for a more in-depth summary of the overall Probate administration process in Illinois.  However, even though most of the Probate process remains the same with or without a will in Illinois, there are still some unique features to an estate with no will, also known as an "Intestate Estate".  Let's take a closer look at these issues.


Illinois Intestate Estate vs. an Estate with a Will


When the deceased person died with a valid will in place, the will directs the administration of the estate, from the appointment of an executor to ultimate distributions.  However, when no will exists, the Illinois Probate Act provisions govern the administration of the intestate estate.  Essentially, if you do not have the foresight to prepare a will for yourself, the Illinois legislature has prepared one for you in the Probate Act.  While many people may not like all of the provisions for intestate estates, they have no choice if they fail to make a will before they die.


What is an Administrator?


When a deceased person has prepared a will, he/she names a representative to handle the affairs of the estate.  This person is called an executor.  When there is no will, however, a court must appoint a representative based on the Probate Act requirements.  This person is called an administrator.  In order to serve as an administrator, an individual must be at least 18 years of age, a resident of the United States, not of unsound mind, not have been adjudicated a disabled person, and not have been convicted of a felony (755 ILCS 5/9-1).  Additionally, there is also a pecking order regarding who has preference to serve under 755 ILCS 5/9-3 of the Probate Act, as follows:   


    (a) The surviving spouse or any person nominated by the surviving spouse.
    (b) The legatees or any person nominated by them, with preference to legatees who are children.
    (c) The children or any person nominated by them.
    (d) The grandchildren or any person nominated by them.
    (e) The parents or any person nominated by them.
    (f) The brothers and sisters or any person nominated by them.
    (g) The nearest kindred or any person nominated by them.
    (h) The representative of the estate of a deceased ward.
    (i) The Public Administrator.
    (j) A creditor of the estate.


Notice Requirement to Heirs


Prior to being appointed, the person wishing to serve as the administrator of an Illinois intestate estate must give written notice of the date/time/courtroom of the hearing on his/her petition to become administrator to all heirs of the estate named in the petition.  This notice must be given at least 30 days in advance of the hearing on the petition.  The heirs of the estate are thus given an opportunity to raise objections to the potential administrator prior to the beginning of the administration process.


Surety Bond


In Illinois, a person serving as an administrator of an estate must have a surety bond in place to "ensure" his/her proper performance as the representative of the estate.  The surety bond amount for an administrator is typically 1 1/2 times the value of the personal property in the estate (755 ILCS 5/12-5).  The actual cost to the estate for this bond can typically range from $200.00 - $2,000.00, depending on the size of the personal estate.  For estates with wills, surety bonds are almost never used as most wills waive this surety bond requirement. 


Estate Distributions


If a person dies in Illinois with no will, his/her estate will pass under the Illinois laws of intestacy, which are found in 755 ILCS 5/2-1 of the Illinois Probate Act.  Under this section, it states the priority of distributions as follows:


1.  ½ to the surviving spouse and ½ to the children

2.  If no surviving spouse, the entire estate to the children

3.  If a surviving spouse with no surviving children, grandchildren, etc., all to the surviving spouse

4.  If no surviving spouse or children, then to the deceased person’s parents and siblings

5.  If no surviving spouse, children, parents, or siblings, then to the grandparents, aunts and uncles, cousins, and their children

6.  If no surviving spouse, children, parents, siblings, grandparents, aunts and uncles, cousins, or children from their line, then to the great-grandparents and their descendants

7.  And if none of these relatives mentioned above have survived the deceased person, then to the nearest known living relatives.

8.  Also, if no known heir can be found, then the entire estate escheats to the government.


It is also important to note that this distribution of estate assets only affects the property of a deceased person that is titled in his/her name alone.  Property of a deceased person that was held jointly with a surviving owner will pass outside of the estate to the surviving joint owner.  Therefore, most property owned by a married couple, for instance, being normally held jointly by the husband and wife, will pass by operation of law to the surviving spouse outside of the estate.


Case Study:  Mother Handled Son’s Probate after he Died with No Will


When Barb’s son tragically passed away in his early 30s, she turned to our firm for help with his estate.  Barb’s son had passed away with a typical estate consisting of real estate, bank accounts, etc., but with no Will to guide the estate administration process.  However, because of our firm’s extensive experience representing Administrators in estates with no Wills, we were able to skillfully counsel and guide Barb through this difficult time in her life.  Our in-depth understanding of the various intestacy provisions of the Illinois Probate Act enabled us to provide Barb with the help she needed with the various steps of the probate process, and to ultimately finalize the estate and make proper distributions as directed by Illinois law.


Contact our Firm


Our firm has helped many Administrators in intestate estates (estates without a will) with routine and complicated Probate matters across the Chicagoland area, including in Kane, Will, DuPage, Cook, and Kendall Counties.  If you have questions regarding a Probate estate, complete the form below to set up a free initial consultation today!

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The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789

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