Understanding Intestate Succession and Why Estate Planning Matters
Most people don’t like to think about death, but planning for the future is one of the most important gifts you can give your family. One of the biggest questions we hear at Macon County Title is:
“What happens if I die without a will?”
The answer lies in Illinois’ intestacy laws. Dying without a will is called intestacy. When this happens, your property doesn’t just disappear, it’s distributed according to a strict set of rules under the Illinois Probate Act. While these laws aim to pass your assets to your closest relatives, the results are not always what you would want.
In this guide, we’ll walk through:
- Which assets pass under intestacy (and which don’t)
- How Illinois law divides property among family members
- Special rules about children, adoption, and heirs
- What happens if you have no surviving family
- Why you should make a plan now instead of waiting
Which Assets Pass by Intestate Succession?
Not all property is subject to intestacy. In fact, many valuable assets bypass probate entirely if you’ve properly titled them or designated beneficiaries. Only property that goes through probate is distributed by intestacy rules.
Examples of property that does not go through intestacy:
- Payable-on-death or joint bank accounts (set up in advance)
- Life insurance proceeds with a named beneficiary
- Retirement accounts like IRAs or 401(k)s with named beneficiaries
- Securities or stock in transfer-on-death accounts
- Real estate with a Transfer on Death Instrument (TODI)
- Real estate held in joint tenancy or tenancy by the entirety
- Vehicles with transfer-on-death registration
- Property in a living trust
If these arrangements aren’t in place, your property will likely pass through intestacy.
👉 Common misconception: A Power of Attorney does not survive death. If someone presents a Power of Attorney for a deceased person, it has no effect. At death, the probate process (or a properly prepared estate plan) must take over.
Who Gets What Under Illinois Intestacy Laws?
Illinois intestacy law 755 Ill. Comp. Stat. § 5/2-1 (2025). sets out who inherits your property if you die without a will. Here’s a simplified overview:
- Children but no spouse → Children inherit everything.
- Spouse but no descendants → Spouse inherits everything.
- Spouse and descendants → Spouse gets 50%, descendants share the other 50%.
- Parents only → Parents inherit everything.
- Siblings only → Siblings inherit everything.
- Parents and siblings → Shared equally, with a surviving parent receiving a “double share” if only one parent remains alive.
Example:
Rob is married to Jill and has a son from a prior marriage. He owns a house jointly with Jill plus $300,000 in separate property. At his death:
- Jill inherits the house outright (not intestate property).
- Jill gets $150,000.
- Rob’s son gets $150,000.
This can create unexpected results for blended families, and sometimes conflict.
The Spouse’s Share
If you die married, your spouse’s share depends on whether you have descendants (children, grandchildren, great-grandchildren).
- No descendants: spouse inherits all intestate property.
- With descendants: spouse inherits 50%, descendants share the other 50%.
Children’s Shares
Children must be legally recognized to inherit under intestacy. Some key rules in Illinois:
- Adopted children: inherit just like biological children.
- Foster/stepchildren (not adopted): do not automatically inherit.
- Children placed for adoption: generally do not inherit unless adopted by your spouse.
- Children conceived but not yet born (posthumous): inherit if born alive.
- Children born outside marriage: must be acknowledged or paternity established.
- Grandchildren: inherit only if their parent (your child) is deceased.
- Children conceived by assisted reproduction: may inherit if you consented in writing and the child is born within 36 months of your death.
What If You Have No Family?
If you die without any surviving family, your property may “escheat” to the state of Illinois. However, intestacy laws are designed to find any living relative, no matter how distant, before this happens.
Even half-siblings count the same as full siblings. Immigration status doesn’t matter either; relatives can inherit regardless of citizenship.
Disqualified Heirs
Illinois law prevents certain people from inheriting under intestacy:
- Someone who intentionally kills the deceased (§ 5/2-6).
- Someone who exploited, abused, or neglected an elderly or disabled person (§ 5/2-6.2; § 5/2-6.6).
Special Rules: Advancements
If you gave property to a relative during your lifetime, that gift may reduce their inheritance if you stated in writing that it was an advancement, or if they admit it in writing.
Why You Shouldn’t Rely on Intestacy
Illinois intestacy laws are “one-size-fits-all.” They don’t account for unique family dynamics, blended families, unmarried partners, or charitable wishes. Without a will or trust, your estate might:
- Go to someone you never intended
- Be divided in ways that cause conflict among relatives
- Require costly probate court proceedings
- Delay your family’s access to property and funds
The truth: Waiting to make an estate plan often costs your family more in money, stress, and time than preparing one now.
Estate Planning Alternatives
Instead of letting intestacy laws decide, you can take control with simple estate planning tools:
- Wills – Direct who inherits and appoint guardians for children.
- Trusts – Avoid probate, protect assets, and provide flexibility.
- Transfer on Death Instrument (TODI) – Pass real estate directly to beneficiaries.
- Beneficiary designations – Ensure accounts and policies go where you intend.
At Macon County Title, attorneys Andrew and Alex help clients create plans tailored to Illinois law and their family’s needs.
Final Thoughts
Dying without a will in Illinois means the state decides who inherits your property. While intestacy may work fine in some simple cases, it often creates problems for blended families, unmarried couples, or anyone who wanted their estate divided differently.
The best solution is to plan now. Don’t wait until it’s too late.
👉 Call our office at 217-428-8080 or contact us today to discuss wills, trusts, and estate planning with our experienced attorneys.