Dying without a will in Illinois: who inherits, and how the state decides
When there is no will, the Illinois Probate Act decides who gets what. Here is how intestate succession, the small estate affidavit, and probate work, in plain language.
This article is general information, not legal advice. Estate law is fact-specific and changes over time. For guidance on your own situation, consult a licensed Illinois attorney.
Most people never write a will. In Caring.com's 2025 Wills and Estate Planning Study, only 24% of respondents said they had a will, with another 13% reporting a living trust. The most common reason people gave for not making one was simply procrastination, and roughly four in ten Americans told Caring.com in 2024 that they did not think they had enough assets to bother. The trouble is that not deciding is still a decision. If you live in Illinois and die without a valid will, the state has already written one for you, and it may not say what you would have said.
That default plan is called intestate succession. It lives in the Illinois Probate Act of 1975, and its core rules of descent and distribution sit in 755 ILCS 5/2-1. Below is how it actually works.
What "intestate" means in Illinois
When someone dies without a valid will, lawyers say they died "intestate." Their estate does not go to the state in most cases (that only happens, called escheat, when no legal heirs can be found). Instead, Illinois law names a fixed order of heirs and divides the estate among them. You do not get to choose. The statute does, based on who survives you.
A key phrase you will see throughout is per stirpes. It means a deceased heir's share passes down to that person's own descendants by branch of the family, rather than being split equally among all individuals. If one of your three children has died before you but left two children of their own, those two grandchildren split their parent's one-third between them. The contrast is per capita, where every surviving person at the same level takes an equal share. Illinois uses the per stirpes (by branch) approach, so the structure of your family tree, not just a headcount, determines who gets what.
Who counts as a descendant or a spouse also matters. A legally adopted child inherits as a natural child does. A child born outside marriage can inherit from a parent where parentage is established under Illinois law. A stepchild you never adopted, and an unmarried partner, are not heirs under the statute at all, no matter how close the relationship. These line-drawing rules are exactly where families are most often surprised, and where an attorney's read of the facts is worth the call.
How an Illinois estate is divided when there is no will
Under 755 ILCS 5/2-1, the division depends entirely on who survives the decedent.
A spouse and descendants
If you leave both a surviving spouse and descendants (children, or grandchildren by representation), the estate is split: one-half goes to the surviving spouse and one-half to your descendants per stirpes. This surprises many people. A spouse does not automatically inherit everything when there are children; they share it.
A spouse and no descendants
If you leave a surviving spouse but no descendants, the entire estate goes to the surviving spouse.
Descendants and no spouse
If you leave descendants but no surviving spouse, the entire estate goes to your descendants per stirpes.
No spouse and no descendants
If you leave no spouse and no descendants, the estate passes to your parents, brothers and sisters in equal parts. The statute includes a notable wrinkle: a surviving parent, where the other parent has died, takes a double portion. So if one parent survives along with siblings, that parent counts as two shares. The descendants of a deceased brother or sister take, per stirpes, the share their parent would have received.
Grandparents and beyond
If none of the above survive, the estate divides between the maternal and paternal grandparents (or their descendants per stirpes), with one-half going to each side of the family. The statute continues outward to great-grandparents and then to the nearest kindred. Only if no heir at all can be found does the estate escheat to the county.
What intestacy does NOT control
Intestate succession only governs probate assets, meaning property that passes under your name alone. A large share of a typical estate often passes entirely outside this system, by its own rules, regardless of whether you have a will:
Life insurance and retirement accounts (401(k), IRA) that name a beneficiary pay that beneficiary directly.
Property held in joint tenancy with right of survivorship passes to the surviving joint owner.
Accounts with payable-on-death or transfer-on-death designations go to the named recipient.
Assets held in a living trust pass under the trust, not the Probate Act.
This is why two people who both "die without a will" can have very different outcomes. The beneficiary form on a retirement account can move more money than the entire intestacy statute.
The spouse's award and child's award
Illinois does not have a statutory spousal elective share, the mechanism some states use to let a surviving spouse claim a fixed percentage against a will. What Illinois does provide, under Article XV of the Probate Act, is a support award.
A surviving spouse is entitled to a spouse's award for nine months of support after death. Under 755 ILCS 5/15-1, that award may not be less than $20,000, plus not less than $10,000 for each minor child or dependent adult child living with the spouse. Where there is no surviving spouse, 755 ILCS 5/15-2 provides a child's award for the decedent's minor children. These awards come off the top of the estate, ahead of most other claims, and exist to keep a family supported while the estate is sorted out.
Probate, and the small estate shortcut
Intestate estates that require court administration go through the Circuit Court in the county where the decedent lived. The court appoints an administrator (the intestate equivalent of an executor) to gather assets, pay debts and distribute what remains under the 2-1 rules.
Illinois offers two administration tracks. Independent administration lets the representative handle most of the estate without constant court supervision, which is faster and cheaper. Supervised administration requires court approval for major steps and is used when heirs disagree or someone requests oversight.
Many estates avoid formal probate entirely. Under 755 ILCS 5/25-1, a small estate affidavit can transfer personal property without opening a probate case. Note an important recent change: Public Act 104-0346 raised the small estate threshold from $100,000 to $150,000 in personal property for deaths on or after 15 August 2025 (the older $100,000 cap still applies to earlier deaths). The affidavit covers personal property only, not real estate, and registered motor vehicles no longer count toward the cap. If the estate includes real estate or exceeds the limit, formal probate is generally required.
Why the default plan often goes wrong
The intestacy statute is clean and predictable, which is exactly the problem. It cannot know your circumstances. It does not recognise an unmarried partner of decades, a stepchild you raised but never adopted, a close friend, or a charity. It splits an estate between a spouse and minor children in ways that can force the sale of a home or trigger guardianship over a child's inheritance. It cannot leave a heirloom to the person who wanted it. A short, valid will, or a trust, replaces the state's guesswork with your actual wishes.
Where Afterlife AI™ fits
Afterlife AI™ is not a law firm and does not draft wills or give legal advice. What it preserves is the part the Probate Act can never reach: your voice, your stories, your way of explaining a decision. Your family can build a Persona from your memories and conversations, free, with no card and no expiry, and that record sits alongside (never in place of) the legal documents an Illinois attorney prepares for you. Executor Lock™ lets you set, while you are alive, who may steward that legacy after you are gone, with your consent recorded and fixed.
Think of it as two separate jobs. A lawyer makes sure the right people inherit the right things. Afterlife AI™ helps make sure the person behind those things is not lost. Both matter, and neither replaces the other.
Frequently asked questions
For the legal questions below, treat the answers as general information and confirm the specifics with a licensed Illinois attorney.
Sources
755 ILCS 5/2-1, Rules of Descent and Distribution (Illinois Probate Act of 1975)
755 ILCS 5/25-1, Small Estate Affidavit (Illinois General Assembly)
755 ILCS 5/ Probate Act of 1975, Article II Descent and Distribution (Justia, 2025)
Illinois Probate Act of 1975, Chapter 755 (Cornell Legal Information Institute / state code)
New Illinois Small Estate Affidavit Law: Key Updates for 2025, Public Act 104-0346 (Lavelle Law)