Here’s something most people don’t want to hear: if you die without a will in Illinois, you don’t get a say in what happens to your stuff. Your spouse doesn’t get a say either. Neither do your kids, your parents, or the brother you’ve trusted with everything since you were ten years old.
Instead, the Illinois Probate Act takes over. It follows a formula. A rigid, one size fits all formula. And it divides your estate according to a set of rules that were written to be fair in a general sense but were never designed with your specific family in mind. An Aurora, IL wills lawyer can help you create a plan that reflects your wishes and protects your loved ones.
The legal term for this is intestate succession. And if you’ve ever said “My family knows what I want” or “We’ll deal with that later,” this is worth reading all the way through.
The Formula: Who Gets What Under Illinois Law
When there’s no will, Illinois law assigns your assets based on your family structure at the time of death. It doesn’t matter what you told anyone over dinner. It doesn’t matter what feels fair. The statute controls.
Married, no children: Your spouse inherits your entire estate. This is the only scenario where the surviving spouse gets everything automatically.
Married with children: Your spouse gets one half. Your children split the other half equally. This is the one that blindsides people. Most married couples assume the surviving spouse inherits everything and the kids eventually get it later. That’s not how it works. If you have three children, each one gets a sixth of your estate right away, even if they’re minors, even if your spouse needs that money to keep the house.
Single with children: Your children inherit everything, divided equally among them.
No spouse, no children: Your estate goes to your parents. If your parents have passed, it goes to your siblings. If no siblings, it works outward to nieces, nephews, grandparents, aunts, uncles, until the law finds a living relative. If there are truly no relatives? The state of Illinois keeps it.
Let that last part sink in for a second. If the state can’t find a single living heir, your life’s savings go to the government. It almost never comes to that, but the fact that it’s even on the table tells you something about the importance of having a plan.
What the Formula Misses
Intestate succession is a blunt instrument. It works off blood relationships and marriage. Nothing else. That means there’s a long list of people and situations it completely ignores.
Unmarried partners. This is probably the most common one we see. Two people share a home, share expenses, maybe even raise children together, but never got married. Under Illinois law, the surviving partner has no inheritance rights at all. Twenty years together, and the law treats them like a stranger.
Stepchildren. If you married someone who has kids from a previous relationship and you never formally adopted them, those stepchildren don’t inherit from you under intestate succession. It doesn’t matter that you’ve been in their lives since they were five. The law doesn’t see the relationship unless there’s a legal adoption on record.
Friends, godchildren, and charities. If you wanted to leave something to your best friend, your church, a godchild, or a favorite cause, a will is the only way to make that happen. The intestate formula doesn’t have a category for people you chose. It only recognizes people you’re related to.
The Probate Problem Gets Worse Without a Will
When someone dies with a will, the will names an executor. That person steps in, files the paperwork, and manages the process. It’s not always smooth, but at least there’s a clear authority.
Without a will, there’s no executor. Someone has to petition the court to be appointed as estate administrator. The court uses a priority list (surviving spouse first, then adult children, then parents, and so on) but it’s not automatic. It takes a court hearing, a filing fee, and time.
And here’s where family dynamics can turn ugly. If two adult children both want to serve as administrator and they can’t agree, the court has to pick one. We’ve seen this happen more times than we can count. Siblings who got along fine their entire lives end up in a courtroom arguing over who should be in charge of mom’s estate. That kind of conflict is expensive, emotionally draining, and completely avoidable.
Minor Children: The Stakes Are Even Higher
If you have kids under 18 and you die without a will, you haven’t told anyone who should raise them. The probate court steps in and appoints a guardian based on what it believes is in the child’s best interest.
Usually, that’s a close family member. But “usually” isn’t a guarantee. Maybe the person the court would choose is someone you’d never pick yourself. Maybe your in laws and your own parents disagree about who should have custody, and now there’s a contested guardianship case on top of everything else.
A will lets you name a guardian and a backup guardian. You can also set up a trust so the money is managed by someone responsible until your kids are old enough to handle it themselves. Without that, a minor’s inheritance might go into a court supervised account with restrictions that make it harder for the guardian to use the funds for the child’s day to day needs.
For a lot of parents, this is the single most important reason to have a will. Everything else on this page matters, but this one keeps people up at night. And rightfully so.
The Small Estate Shortcut (But It Has Limits)
If the estate is relatively small and doesn’t include real property, your family may be able to skip the full probate process altogether. Illinois recently raised the small estate affidavit threshold from $100,000 to $150,000 under Public Act 104-0346. Motor vehicles are now excluded from that calculation too, which is a meaningful change. A $30,000 car no longer pushes a modest estate over the limit.
But here’s the catch: the small estate affidavit only lets your family collect assets without going to court. It doesn’t let them decide who gets what. Without a will, the intestate formula still controls the distribution. So your family avoids the courtroom, but they still don’t get a choice.
What It Actually Takes to Avoid All of This
Every problem on this page, the rigid formula, the unmarried partner who gets nothing, the guardianship question, the probate delay, the family conflict, can be solved with a basic estate plan. We’re not talking about something complicated. For most families, it starts with a will.
A will lets you name your beneficiaries, choose your executor, and designate a guardian for your minor children. If you want to go further, a revocable living trust lets you avoid probate entirely and gives you more control over how and when your assets are distributed.
The cost of putting this together is a fraction of what your family would spend navigating intestate probate. More importantly, it gives you, not a statute written in Springfield, the final word on what happens to the things you worked your whole life to build.
Don’t leave it up to the state. Contact Kravets Law Group to set up a consultation. We work with Illinois families every day to build estate plans that actually reflect what they want, not what a formula says they should get.