What Happens If My Parent Died Without A Will? An Illinois Probate Attorney Explains

The loss of a parent can be emotionally crippling. You may feel lost when the person you have known and loved all of your life is suddenly gone. You may still be grieving when you have to tend to tasks such as the funeral and reading the will. But what happens if your parent died without a will? Dying without a will is also called dying intestate, and there are legal steps you must take to ensure your parent’s assets are distributed according to Illinois probate laws.

Intestacy (dying without a will) is more common than many realize. In fact, almost 65% of people in the United States do not currently have a will. In this article, we will explain the importance of having a will, what will happen to your parents’ belongings if they pass away without a will, and what to expect with the probate process.

What Happens Now That Your Parent Died Without A Will

Did you know that Illinois has specific laws stating how the courts will distribute assets from a person who died without a will? Intestate succession is the legal process by which the courts distribute assets to the surviving family members. There are often misconceptions about how the courts will distribute the assets. Some believe the spouse inherits everything, or if there is no spouse, the eldest child is next in line for all assets. Both of these ideas might be wrong.

In today’s world, not all families are simply parents and children. There can be stepchildren, adopted children or loved ones who have lived with the person but never married. The courts have addressed these situations, and without a will, many living loved ones may not like the outcome.

Let’s look at a couple of scenarios regarding Illinois intestacy laws:

• If a person dies and they leave behind a spouse but no children. Then, the spouse would inherit all assets.
• Suppose a parent passes away and leaves behind a spouse and children. In this case, the spouse receives half of the assets, and the children split the other half. This can be different if the house was in both spouses’ names. In that case, the surviving spouse keeps the home, and the spouse and children split the remaining assets.
• If the parent dies without a surviving spouse, only children. The children will split the assets equally. The eldest does not automatically inherit the home, business or anything else.
• Suppose a person dies with no spouse or children but has parents and siblings. If the deceased’s parents are still living, then the parents and siblings will equally split the assets.

As you can see, the options become a bit more complicated as we go along. Let’s continue:

• When a person passes and has legally adopted children. The children are the same as biological children, and they are to receive their fair share of the assets.
• Stepchildren and foster children. If they were never legally adopted may not automatically receive the same division of assets as biological children.
• If a person passes away and their children have already passed. Then, the assets may be distributed to the grandchildren.
• If the deceased person has a child outside of their marriage. If the paternity was legally acknowledged, that child would receive their share of the assets.

And there are even more scenarios that may happen. You may be rightfully confused if your parent died without a will, and this is why speaking with an experienced probate attorney can help you understand the process and answer questions.

Illinois Probate Process Without A Will

Probate is the legal process of closing a deceased person’s estate and can be important. Some steps of Illinois probate are:

• File a petition to open probate with the courts.
• The courts will appoint an administrator since there is no will and, therefore, no executor.
• Notifying all heirs.
• Inventorying all assets. This can be difficult since there is no will to list them.
• The estate must pay all outstanding debts and taxes (not necessarily you, personally).
• The administrator will distribute all assets according to Illinois intestacy laws.
• File a petition to close the estate with the courts.

While each step may sound simple, there can be confusion or conflict at any point. Some of the challenges that could happen are:

• Perhaps some heirs were unknown until now (children born outside of the marriage).
• Understanding all debts and assets can be difficult without a will. Sometimes, heirs find bank or investment accounts years after the person’s death.
• Not everyone may agree with who the courts assign as the administrator.

There are many instances when someone may dispute the probate process, and that is when you need an attorney on your side.

• Perhaps the person promised a particular asset to a beneficiary, but the courts cannot enforce this without a will. It is common for this heir to dispute the intestacy laws and still want their promised asset.
• If the deceased person and the family were estranged, loved ones outside the family may feel they have rights. Unfortunately, they do not have legal recourse.

The Importance Of Legal Counsel

The probate process can be long and confusing. When there is a will, the normal process can last 6-12 months. But without a will, this timeframe can become longer. Because of the misunderstandings and disputes that may arise, it’s often important to seek the help of an experienced probate attorney.

At Estate and Probate Legal Group, we have worked with many family situations. We will help you understand the probate steps and the laws and protect your best interest. When disputes arise (as they often do in this emotional situation), you need a probate attorney in Chicago on your side.

Oak Brook Probate Attorney

Are you working through the loss of a parent and trying to understand Illinois intestate succession laws? Consulting an experienced probate attorney can give you advice and help you discuss your legal options. Contact the Estate & Probate Legal Group at 630-864-5835.

Areas We Serve: Cook, DuPage, Kane, Kendall and Will counties