When someone dies without a Will it is called dying intestate. When you die without a Will, the property that you own, subject to probate and depending on how you hold title to the property, will pass to your heirs according to the intestacy statutes under the Illinois Probate Act. Under Illinois law, property passes in probate court as follows:
- If you have a spouse, 50% to your spouse, and 50% to your descendants per stirpes. For example, if you have $100,000 of probate assets and a spouse and two children, your property will pass $50,000 to your spouse and $25,000 to each of your two children.
- If you do not have a spouse but you have descendants, then the entire estate passes to your descendants.
- If you only have a spouse and no descendants, then the entire estate passes to your spouse
- If there is no surviving spouse or descendants, then the estate passes to the parents, siblings or descendants of siblings.
- If there is no spouse and no descendants, parents, siblings or descendants of siblings, then to grandparents or the descendants of grandparents.
- If there is no spouse and no descendants, parents, siblings, descendants of siblings, grandparents or the descendants of grandparents, then one-half of the estate goes to maternal great grandparents or their descendants and one-half to the paternal great grandparents or their descendants.
- Finally, if no living kin is found, the property goes to the county in which the property is located.
So what kind of property is subject to probate? In general, it depends on how the property is held. Property held by an individual in his/her name may be property subject to probate. Property held jointly, like joint bank accounts or a home titled jointly with rights of survivorship, or property held in a trust, are generally not subject to probate.
Setting up a comprehensive estate plan, including a Will, is an important part of directing the disposition of your property after death. It will also help avoid probate fees, whether in Cook County, DuPage County or any other county, and will assist your family and heirs after your death. An estate planning attorney can help you set up the documents necessary to ensure your estate is managed properly after your death.