Illinois Inheritance Succession Laws

Inheritance succession is the law about how a deceased person’s assets are distributed if they do not leave a will or other means for passing their property to their heirs. Of course, many people pass away without having made a will or an estate plan. In these cases, a probate court must look to state laws regarding intestate succession.

A person who passes without having made a will is said to have died “intestate.” In Illinois, when a person dies intestate, then Illinois intestacy laws determine who should receive the deceased’s assets. A person who has any questions about Illinois inheritance law should have a lawyer consultation with an Illinois lawyer to get information relevant to their particular situation.

It is important to keep in mind that certain assets may pass to an heir outside of probate. In fact, for many middle-class people, their most valuable assets may pass to their heirs outside of the probate process. For example, the deceased person may have designated a beneficiary for their retirement savings account. This named beneficiary would receive the funds in the account directly and without having gone through the probate.

Only assets in a deceased person’s probate estate pass to heirs according to the Illinois rules of intestate succession. If an interest in real property is owned by the deceased as a joint tenant in a joint tenancy with the right of survivorship, then a surviving joint tenant would inherit the deceased’s interest.

If some kind of asset allows a beneficiary to be designated and the designation is legally enforceable, then the beneficiary would receive the property.

However, if the decedent were to have been the last surviving owner of a joint tenancy interest, then the property would become part of the deceased owner’s probate estate. The interest would pass according to intestate succession. Again, an intestacy lawyer would be able to clarify what property would go into a person’s probate estate and pass to heirs according to the laws of intestacy in Illinois.

What Is the Order of Inheritance Succession in Illinois?

The order of succession in the event that a person passes away intestate is as follows:

• Surviving Spouse Only: If an intestate decedent (deceased person) leaves only a spouse and no children, grandchildren or great-grandchildren, the spouse inherits the decedent’s entire estate.
• Spouse and Children or Grandchildren: If the intestate decedent dies leaving both a spouse and children, then their surviving spouse should inherit half of the assets in their probate estate. The children inherit the other half per stirpes, which means in equal shares. So each of two children would inherit half of the children’s half of the estate. Each of the three children would inherit one-third of the children’s half of the estate and so on.
• Children or Grandchildren Only: if the intestate decedent passes leaving only children, then each receives their share of the total estate on a per stirpes basis. If a child has passed away but has surviving children, those children inherit their parent’s share, again on a per stirpes basis.

If a person dies intestate but with a surviving parent or parents and siblings, and no spouse or children, the estate goes to the surviving parent or parents and siblings in equal shares. If the intestate person leaves only one parent, the surviving parent receives a double share.

If a sibling of the intestate decedent has passed away before the decedent, that sibling’s share goes to their own descendants on a per stirpes basis. If the sibling who has passed away did not leave any children or grandchildren, then their share of the estate is distributed among the parents and any other surviving siblings.

Many people are likely to assume that if a person who dies intestate is survived by their spouse, their spouse would inherit their entire probate estate. However, that is not the case per the inheritance rights of spouses in Illinois.

If the person is survived by children as well, then the children take half on a per stirpes basis. If the children are minors, then trusts must be set up and the assets would go into the trust. The spouse or someone else would be burdened with the bureaucracy of managing a trust for a child or children.

This should serve as a compelling reason to have a valid will if a person is married and has children. They may well prefer to ensure in their will that their surviving spouse inherits their entire estate.

How Much Will Each Relative Receive Through Inheritance Succession?

As noted above, how much each relative receives through the Illinois scheme of intestate succession depends on a variety of factors. One important factor is Illinois inheritance law and the laws of intestate succession. Another critical factor is which relatives a person who dies intestate has. Whether they have a spouse and children or whether their children have children has a significant impact on how much each relative might receive.

Some relatives may receive no inheritance. For example, if the deceased person is survived by a wife and/or children, then parents and siblings of the deceased would not inherit at all.

Of course, the value of the decedent’s estate has a significant impact on the amount of money that an heir would receive. Yet another factor would be what part of a decedent’s assets end up in their probate estate and what part may pass to heirs and beneficiaries outside of probate.

What Else Should I Know About Intestacy and Inheritance Succession Laws?

If an individual dies intestate and leaves no surviving spouse, children, parents, siblings or relatives of any other type, then any real property they own goes to the county in which it is located.

Any personal property in their estate that is located within Illinois goes to the county in which the individual lived at the time of their passing. Any other property that they owned would go to the state of Illinois.

There are two types of taxes that may come into play when a person’s estate goes through probate. Illinois does have an estate tax, but it only applies when an estate exceeds $4 million in value. If an estate tax is owed, the executor of the state would pay it out of the probate assets before they are distributed to any heirs.

Another tax is the legacy tax. A legacy tax has to be paid by an heir after they receive an inheritance. Fortunately, Illinois does not have a legacy tax, so an heir need not be concerned about it.

Do I Need an Illinois Attorney for Issues With Inheritance Succession Laws?

If you have questions about how the laws of inheritance succession might operate in your situation, you want to talk to an Illinois inheritance lawyer. Your lawyer can review your assets and assess what could pass to heirs or a beneficiary outside of probate and what assets would become part of your probate estate.

Your lawyer would be able to tell you who would inherit under the laws of intestacy in Illinois. If you learn that the outcome would not conform to your wishes, you may wish to have your lawyer create an estate plan to ensure that your assets are distributed as you want after your passing.