Intestate Succession in Illinois

A person who has died without a will or trust has died intestate. How their assets are divided up is governed by state statute. In Illinois, the rule is dependent on whether the decedent had a spouse or other descendants.

If the decedent had a spouse as well as other descendants, such as children, the assets would be divided in half: half to the spouse and the other half divided among the descendants in equal shares. 755 ILCS 2/2-1(a). This has been the rule in Illinois since 1819 when the state replaced the English rule of primogeniture, which left all decedent’s assets to the firstborn child. Aetna Life Ins. Co. v. Hoppin, 214 F. 928 (7th Cir. 1914). If there was no surviving spouse but other descendants, the descendants would split the assets equally amongst themselves. 755 ICLS 2/2 1(b). If there was a spouse and no other descendants, the spouse would retain all the assets. 755 ILCS 2/2-1(c). If there is no surviving spouse and no other descendants or kindred able to be located, the real estate (if there is any) would go to the county in which it’s located, and all other assets would go to the state. 755 ILCS 2/2-1(h).

To avoid leaving the decision of how to divide one’s assets upon their death to state statute, it is wise to create a will or trust to dictate how it should be divided up. A will creates an estate which may then be distributed by a probate court. Creating a trust would allow for a smoother distribution to beneficiaries as it avoids probate court.