When a loved one passes away without a will in Illinois, their estate doesn’t just disappear—it goes through a legal process called probate. But what does that actually mean? Who gets the property? And how long does it take? In this blog, we share “Illinois Probate 101: What Happens When Someone Dies Without a Will?” to help you understand how probate works when there is no will, what Illinois law says about who inherits, and what steps your family may need to take next.
At Rincker Law PLLC, we help grieving families across Illinois navigate probate with clarity, compassion, and confidence. In this guide, we’ll explain what happens when someone dies intestate—meaning without a will—and how the probate process works under Illinois law.
What Does “Dying Intestate” Mean?
In legal terms, dying intestate means someone passed away without a valid will in place. When that happens, Illinois law steps in to determine:
- Who is in charge of the estate
- How debts and taxes are paid
- Who inherits what—and in what proportion
This is handled under Illinois intestacy laws found in the Illinois Probate Act (755 ILCS 5).
Does the Estate Always Go Through Probate?
Most estates without a will must go through probate, especially when:
- The person owned real estate solely in their name
- There are assets worth more than $100,000
- There are no payable-on-death designations or joint ownerships
However, if the estate is small (less than $100,000 and no real property), it may qualify for a Small Estate Affidavit, which avoids formal probate.
Step 1: Illinois Probate 101 – Appointing a Representative
Without a will naming an executor, the probate court will appoint a personal representative—often a spouse, adult child, or other next of kin. This person is sometimes called the administrator.
To be appointed, the person must:
- File a Petition for Letters of Administration
- Be approved by the probate court
- Sign a bond (unless waived)
The administrator is legally responsible for gathering assets, paying debts, and distributing property according to Illinois law.
Step 2: Identifying and Valuing Assets
Once the court approves the administrator, the next step is to:
- Collect the deceased’s assets (bank accounts, real estate, personal property)
- Determine what is probate property vs. non-probate
- File an inventory with the court listing all estate assets and their estimated value
Non-probate assets—like joint accounts, retirement accounts with beneficiaries, or life insurance—bypass probate and go directly to the named person.
Step 3: Paying Debts and Taxes
Before any inheritance is distributed, the estate must first pay:
- Funeral expenses
- Valid debts (credit cards, loans, medical bills)
- Final income taxes
- Probate court fees and administration costs
If there isn’t enough money to pay everything, Illinois has rules for which debts get priority.
Step 4: Distributing Property to Heirs
After all valid debts, taxes, and expenses are paid, the administrator is responsible for distributing the remaining estate assets according to Illinois intestate succession laws—the legal rules that apply when there is no will. These laws are laid out in the and are based on the decedent’s family relationships at the time of death.
Here’s how distribution generally works, along with some key details that families should know:
Married with Children
When the decedent was legally married and had one or more children, Illinois law divides the estate equally between the spouse and children:
- The surviving spouse receives 50%
- The children share the remaining 50% equally
Important notes: All children are included—this means biological children, adopted children, and sometimes children born outside of the marriage, as long as legal parentage has been established. If a child predeceased the parent but had living children (the decedent’s grandchildren), those grandchildren typically inherit by representation, meaning they divide their parent’s share. Stepchildren do not inherit unless they were legally adopted by the decedent.
Married with No Children
If the decedent was married but had no children, then the surviving spouse receives the entire estate.
Other considerations: A common-law marriage is not recognized in Illinois. Only a legally married spouse is entitled to inherit under intestacy laws. If the decedent was legally separated or in the middle of divorce proceedings but the divorce wasn’t finalized, the surviving spouse may still inherit unless disqualified by court order.
Unmarried with Children
In this case, all assets are divided equally among the decedent’s children.
Key issues: Children must be legally recognized—through birth certificates, paternity acknowledgment, or court order—to inherit. If one of the children is deceased, their children (the decedent’s grandchildren) may inherit that share. If a minor child inherits, their share may be held in a guardianship estate until they reach adulthood, unless a trust exists.
No Spouse and No Children
When there is no surviving spouse or children, the law looks to the decedent’s closest surviving relatives. The estate will pass in this order:
- Parents
- If no parents, then to siblings (brothers and sisters)
- If no siblings, then to nieces and nephews
- Then to more remote relatives such as aunts, uncles, cousins
Details to know: Half-siblings are included and treated the same as full siblings. If a parent or sibling is deceased, their descendants may inherit by representation. Tracing heirs may require a genealogy affidavit or additional court steps when no immediate family can be found.
No Known or Living Relatives
If no relatives can be identified after a diligent search, the estate escheats to the State of Illinois—meaning the property becomes state property. This is extremely rare and only happens when:
- No heirs can be located, even after court-ordered publication and research
- No legal will exists
- All intestate succession options are exhausted
Final attempt efforts: The court may appoint a special administrator to conduct a search for potential heirs using tools like probate researchers, public notices, or DNA evidence. These efforts must be exhausted before the state can take the estate.
Step 5: Closing the Estate
After all distributions are made and the court approves, the administrator files a final report and the probate case can be closed.
In most cases, probate in Illinois takes six months to a year, but it can take longer if there are disputes or complex assets.
FAQs: Dying Without a Will in Illinois
Q: Can I be the administrator if I live out of state?
A: Possibly. Illinois courts may allow it, but in some cases you may need a co-administrator who lives in Illinois or post a higher bond.
Q: What if there’s a dispute about who should inherit?
A: These issues are handled by the probate court and may involve formal litigation or mediation.
Q: Can I avoid this for my family?
A: Yes. The best way to avoid probate is to create a valid will, use trusts, and title assets to pass outside of probate.
Rincker Law Can Support You With The Illinois Probate Process
Losing a loved one is hard enough. When there’s no will, it can create extra stress, confusion, and delay. But with the right legal help, you can manage the process—and protect what matters most.
At Rincker Law PLLC, we help Illinois families through every stage of probate, including intestate estates. If you’re facing probate without a will, we’re here to help you take the next step.
Contact us today at (217) 774-1373 to schedule a consultation and get clear answers for your family.