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Published: 2008-03-26

What Happens When Someone Dies Without Leaving A Will



Uncle Charlie has just passed away. The family has searched everywhere at his home for his will or a copy of his will. They have found no evidence that Uncle Charlie had a safety deposit box. They have even called all of the local law offices and none of them have any evidence of a will drawn by Uncle Charlie. Did Uncle Charlie have a Will? What happens if he doesn't have a Will?

Somewhere, I think I read that if you don't have a Will your property goes to the State. I'm trying to figure out who I call to turn over Uncle Charlie's house and his stocks, bonds, certificate of deposits, stamp collection and cash accounts. Maybe I should call my local representative or maybe I should call a lawyer. This has had to happen before. What do I do????

The answer to the above scenario is you should call your attorney. The State of Illinois has written a will for all of its citizens that have not taken the time to write one of their own. In this article we are dealing only with property that is owned solely by the decedent or property that does not have a named beneficiary, like life insurance. An individual's property does NOT automatically go to the State. Instead, the law provides that it shall pass to the heirs of the decedent. Just who are the takers under the law of the State of Illinois?

  1. If an individual is married and has no descendants surviving, children or grandchildren, the entire estate goes to the surviving spouse.


  2. If an individual is married and has a descendant or descendants, the surviving spouse gets fifty (50%) percent of the property and the descendants gets fifty (50%) percent of the property divided equally among them.


  3. If there is no surviving spouse but there are descendents, then the property is divided equally among the descendents. Again, if one of the descendants had predeceased, his/her children received his share equally.


If Uncle Charlie was married and has one child, even if the child is a minor, the property is divided equally between the surviving parent and the one child. If Uncle Charlie left a wife and two children, his wife would get half of the property and each of his children would get 25% of his property. If one of Uncle Charlie's children had predeceased him leaving children, [Uncle Charlie's grandchildren], the grandchildren would take their parent's share of Uncle Charlie's estate.

The statute also deals with the situation where Uncle Charlie was not married at the time of his death and never had any children. In that case, the property ascends to Uncle Charlie's parents and siblings that survive. If only one of Uncle Charlie's parents is surviving, that surviving parent takes a double share. Thus, if Uncle Charlie's mother was surviving and he had two brothers and two sisters, his property would be divided with his mother taking 1/3 of the estate and each sibling taking 1/6 of the estate. If his mother was not living, then his siblings would each take twenty-five (25%) percent of his property.

The law goes on and deals with the situations when one of his siblings has predeceased Uncle Charlie leaving descendants and covers many other situations. In addition, the law indicates who may nominate the person to act as the Administrator of Uncle Charlie's estate. Those closest in relationship have the right to nominate the Administrator. After due notice is given to all of those standing in the same relationship, the Court will select one of their heirs to act. Thus, if Uncle Charlie dies leaving four siblings as his closest heir, each of them has an equal right to nominate someone to act as the Administrator. If they agree, then the person can be appointed immediately. Otherwise, a hearing will be held after due notice is given to all of those in the same degree of relationship.

It is only when no kindred (heir) can be located that an individual's property passes to the government. In that situation, any real estate that the decedent owns goes to the county in which it is located. The personal property located in the state or outside of the state goes to the county in which the individual resides. Thus if Uncle Charlie lived on his farm in Knox County but owned land of which 120 acres is in Knox County and 80 acres are in Warren County, his land would go to the county in which it is located. All of his personal property, farm equipment, household goods, cash, etc., would go to Knox County.