What Happens if I Die Without a Will?



When a person does not have a will specifically stating what should happen with their property, then it can create confusion about how to handle the estate. When you find yourself in such a situation, be quick to contact an Illinois or Indiana estate planning lawyer for assistance resolving every issue that may arise.

Most cases of deaths without wills have to head to a probate court, and this process can become adversarial in some families. Legal representation becomes very important for preserving certain rights and ensuring the most favorable outcomes.

Dying Without a Will in Illinois

A person who dies without a valid will dies intestate, and the person who dies is known as the decedent. A decedent’s property will be given to their heirs during a probate court case, with the heirs being the beneficiaries of an individual who dies without a will.

The decedent’s relatives get part of the estate, so a spouse and two children would see the spouse getting half of the money from the estate and the children getting the other half divided equally between them. When there is no spouse but multiple children, then all the children divide everything equally. 

A court will give a spouse and any dependent children money from the estate as support for nine months. When a person dies and has no spouse or children, their property will go to the next closest surviving relatives. 

Such relatives may include:

  • Parents
  • Cousins
  • Nieces and nephews
  • Adult siblings

A probate court will assign an administrator to settle a decedent’s estate if there is no will. An administrator must do certain things, including gather all of the deceased person’s assets, pay bills, and give out the estate property to the people who should receive the money or property.

When a child is born after a decedent dies, they may still be a part of an estate. A child has to be in utero at the time of a decedent’s death, meaning that the child was developing in the womb but not yet born.

A child may also count when assisted reproduction creates the child. A court will include the child when all of the following are true:

  • The decedent is the child’s biological parent
  • The child is born within 36 months of the date that the decedent dies
  • The decedent consents in writing before their death to be a legal parent of any child created from their sperm or egg
  • The administrator of the estate receives written notice with a copy of the decedent’s written consent within six months of the death of the decedent

Dying Without a Will in Indiana

Like Illinois, Indiana uses intestate succession to determine cases in which a person dies without a will. Assets that do not go through your will and are not affected by intestate succession laws include any property in a living trust, life insurance proceeds, funds in an individual retirement account (IRA), 401(k), or another retirement account, real estate held by transfer-on-death deed, securities held in a transfer-on-death account, vehicles held by transfer-on-death registration, payable-on-death bank accounts, or property the descendant owns with another person in joint tenancy or tenancy by the entirety.

Such assets pass to the surviving co-owner or to a designated beneficiary, regardless of whether they had a will. Intestate succession in Indiana typically divides property as follows:

  • Children but no spouse — The children inherit everything.
  • Spouse but no descendants or parents — The spouse inherits everything.
  • Spouse and descendants from descendant and that spouse — Spouse inherits half of the intestate property, and descendants inherit other half of intestate property
  • Spouse and at least one descendant from a previous spouse — Spouse inherits half of intestate personal property and one-quarter of the fair market value of real estate, minus the value of any liens or encumbrances on that real estate, descendants inherit everything else.
  • Spouse and parents — Spouse inherits three-quarters of intestate property, and parents inherit one-quarter of intestate property.
  • Parents but no spouse or descendants — Parents inherit everything.
  • Siblings but no spouse, descendants, or parents — Siblings inherit everything.
  • Siblings and parents and no spouse or descendants — Siblings and parents share equally, but the parent’s share must be at least one-quarter of intestate property.

The spouse is one large determining factor in most intestate succession cases, as when a person dies with parents but no descendants, their surviving spouse inherits three-quarters of the intestate property. If a person dies with children or other descendants from them and their surviving spouse, the surviving spouse inherits half of the intestate property.

When a person dies with children or other descendants from them and a surviving spouse, the surviving spouse inherits half of the intestate property. Children who were legally adopted receive an intestate share, but foster children or stepchildren who were never legally adopted do not automatically receive a share.

Children who a deceased person placed for adoption and who were legally adopted by another family do not receive a share. Children conceived by a descendant but not born before their death do receive a share.

When a decedent was not married to their children’s mother when she gave birth to them, they can receive a share of the estate if the decedent later marries the children’s mother and acknowledges the children as their own, the decedent signs an affidavit affirming paternity, the child is at least 20 years old and a court establishes paternity during the decedent’s lifetime, the child is under the age of 20 and a court establishes paternity during the decedent’s lifetime or within five months after the death, or the child was born after the death and a court establishes paternity in a case filed within 11 months. Grandchildren only receive a share when a grandchild’s parent is not alive to receive their share.

Other important considerations in Indiana include:

  • Half-relatives inherit as if they were whole, meaning siblings with whom a descendant shares one parent, but both have the same right to property as if they had both parents in common. 
  • Posthumous relatives, meaning relatives conceived before but born after a descendant dies inherit as if they were born while the descendant was alive. 
  • Immigration status is not determinative, as relatives can receive an intestate share of property regardless of whether they are citizens or legally in the United States. 
  • Causing the death of a child’s other parent will prevent that party from receiving any share of the child’s estate. 
  • Adultery or abandonment meaning that a person who is separated from a spouse and living in adultery at the time of a spouse’s death or abandons the spouse without just cause does not receive a share of the spouse’s estate. 

Furthermore, giving a relative property during your lifetime means you can subtract the value of the property from the relative’s share only when you or the relative put this in writing.

Call Us Today to Schedule a Free Consultation with a Will Lawyer Serving Illinois and Indiana

You probably do not want to die without a will because of the immense problems it can cause your family and other loved ones. Make sure you work with Spagnolo & Hoeksema, LLC, for help formulating a will and protecting your interests.

Our firm will be able to conduct a thorough examination of all your assets and develop a plan that specifically suits all of your needs. You can call us or contact us online to receive a free consultation so we can further discuss your options with you.

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