Without a valid will, a person is considered “intestate” when they die. It’s legal jargon that means your estate will be decided by state law—not the individual—in probate court. This situation is easy to avoid by completing the correct paperwork. It will make your family’s life easier, save time and money, and doesn’t require a lot of work.
An estate attorney is the person to turn to with questions about wills, estates, trusts, and power of attorney. They can assess your situation and craft a plan for your estate with your family in mind.
Why You Need a Will and Other Estate Documents
When a person dies without a will in Illinois, a probate judge decides who inherits their assets. That means:
- The law dictates that your spouse gets half of the estate, and any children share the other half. If you are married without children, your spouse gets your entire estate.
- If you have a life partner but are not legally married to that person, the court will not recognize them as eligible to automatically inherit any portion of your estate.
- If you were married but separated without divorcing, your spouse still has inheritance rights under Illinois law.
- If you have neither a will nor any qualifying family members, your assets go to the state, which is called “escheat.” This process of a court dividing up an estate is called intestate succession.
There are many reasons to avoid dying intestate. It all begins with creating a simple will.
Will. Any adult over age 18 can make a will. It must be in writing (electronic versions are now allowed) and witnessed by two disinterested adults. Kept in a safe place, it is presented to the court upon the individual’s death. Without a will, any thoughts you have about providing a portion of your assets to your parents, a charity, or a friend is unlikely to come to fruition.
Your will does more than determine who gets your money. If your children are under age 18, the will is where you name their guardian. Without this information, the courts decide who becomes your child’s guardian.
Family conflict can arise when a person dies without a will. It’s not uncommon for family members to fight over sentimental items or to feel shortchanged in an inheritance. If you make a will, you get to dictate who receives specific items from your estate, and to explain in writing how you made decisions about the division of your assets. These words go a long way toward promoting family peace.
Aside from a will there are ways to keep your assets from being divided by the probate court.
Designated beneficiary. Probate does not apply to all of your assets. If you have created a trust or if you have a designated beneficiary on your accounts, those items are not decided by probate. Putting a beneficiary on your bank, insurance, and investment accounts ensures that they take over those assets quickly and without the involvement of probate court when you die. It’s as simple as filling out a beneficiary form and sending it to the bank or company that holds the account.
If you own a home it is subject to probate in the absence of a will, but that can be avoided, too.
Joint Tenancy with Right of Survivorship. If you have real property, putting your spouse, partner, or a child on the deed and creating joint tenancy with the right of survivorship similarly bypasses probate. In a joint tenancy/survivorship situation, ownership immediately passes to the other person on the deed. To be effective, this information must be recorded on the deed while you are alive.
Navigating the Paperwork
For personalized advice about wills, inheritance, and estate planning, consult an experienced Illinois estate attorney at Legacy & Life Law Firm. They can help you create a plan that reflects your wishes and protects your family.