Dying Without a Will in Illinois: Who Inherits
If someone dies in Illinois without a valid will, the Probate Act decides who inherits. A spouse with children gets half, and the children share the other half. A spouse with no children gets everything. With no spouse, the children get it all, then parents and siblings, and so on down the line.
What you need
When a family member has died without a will, gather these before anything else.
- A search for a will. Anyone who holds the original must file it with the court clerk right after the death, so check the home, the safe deposit box, and with the family lawyer.
- A list of the living relatives: spouse, children, grandchildren of any child who has died, parents, brothers and sisters.
- A list of what the person owned, and how each item was titled.
- Papers for any trust, beneficiary form, or recorded transfer on death instrument. Those pass outside the rules on this page.
- The death certificate.
Who inherits under section 2-1
Section 2-1 of the Probate Act sets the order. The estate is distributed after all just claims against it are paid. The first line below that applies is the one that controls.
| Who survives | Who inherits |
|---|---|
| Spouse and descendants (children, grandchildren) | One half to the spouse and one half to the descendants |
| Descendants but no spouse | All to the descendants |
| Spouse but no descendants | All to the spouse |
| No spouse or descendants, but a parent, brother, sister, or their descendants | To the parents, brothers, and sisters in equal parts. A surviving parent takes a double portion if the other parent is dead. A deceased sibling's share goes to that sibling's descendants. |
| None of those, but a grandparent or a grandparent's descendants | One half to the maternal grandparents' side and one half to the paternal side |
| None of those, but a great-grandparent or a great-grandparent's descendants | One half to each side, in the same way |
| None of those | The nearest relatives of equal degree, counted by civil law rules |
| No spouse and no known relatives | Escheat. Real estate goes to the county where it sits, and other property to a county or the State, as section 2-1(h) provides. |
What "per stirpes" means for the children's half
The statute says descendants take per stirpes. Each branch of the family keeps its share. If one of three children died before the parent, the three shares do not become two. The dead child's own children split that child's one third. This rule keeps a grandchild from being cut out when a parent dies first.
The statute also says there is no distinction between kindred of the whole blood and of the half blood. A half sibling counts the same as a full sibling.
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Tell Jeff about your family, your home and what you want to happen. He'll explain the next step.Office hours: Monday to Friday 8:30 AM to 6 PM, Saturday 10 AM to noon. After hours, leave your name, number and the best time to call back.
Jeff McCarthy, Inspired Law Group, 136 E 9th St, Lockport, IL 60441
Who is not on the list
The statute does not mention an unmarried partner, a stepchild, a friend, or a charity. They inherit nothing unless a will, trust, beneficiary form, or other document names them. A surviving spouse still takes half when the children come from an earlier relationship. For families with a second marriage, the blended family page explains why that default often does not match what people want.
Other Probate Act rules that change the answer
Section 2-4 treats an adopted child as the descendant of the adopting parent for inheritance. Section 2-3 gives a child in utero at the death the same share as a child born before it. A person who intentionally and unjustifiably causes the death of another gets nothing, under section 2-6, and the property passes as if that person died first.
Section 2-2 sets rules for a child born outside marriage, who inherits under section 2-1 if both parents are eligible parents. An eligible parent is one who acknowledged the child, established a parental relationship, and supported the child during the child's life.
Who runs the estate
Without a will there is no named executor. The court appoints an administrator. Section 9-3 lists who has preference to receive letters of administration, in order: the surviving spouse or the spouse's nominee, then legatees, then children, grandchildren, parents, brothers and sisters, the nearest kindred, and later the Public Administrator and creditors. A person with preference can nominate someone else in their place. After that, the process follows the usual probate steps in the circuit court.
What this means for your own plan
The default order is a set of rules written for everyone. It does not know that you want a niece to receive a family home, that a child has special needs, or that you prefer your spouse to receive everything. It also cannot name a guardian for young children. That choice needs a will or a signed designation. Jeff can compare the default order with what you want and prepare the documents that change it.
Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.
Questions people ask about dying without a will
Short answers first. Jeff McCarthy reviews every answer on this page.
Section 2-1 of the Probate Act decides. A spouse and descendants split the estate in half. A spouse alone gets everything, and descendants alone get everything. After that the order moves to parents, siblings, and more distant relatives.
Only if you leave no descendants. If you have children or grandchildren, your spouse gets one half and your descendants share the other half.
The estate goes to your parents, brothers, and sisters in equal parts, with the descendants of a deceased sibling taking that sibling's share. A surviving parent gets a double portion if the other parent is dead.
No. Section 2-1 does not list stepchildren. They inherit only if a will, trust, or other document names them.
No. An unmarried partner is not on the list in section 2-1.
Under section 2-1(h), the real estate escheats to the county where it is located, and personal property goes to a county or to the State.
Property in the person's name usually goes through court, and the court appoints an administrator. Property in a trust or covered by a recorded transfer on death instrument passes under that document.
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