Drost Kivlahan McMahon
& O’Connor LLC
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Arlington Heights, IL 60005-1475
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Office: 847.577.2227
Fax: 847.577.2204

If I Do Not Have a Will, What Happens Upon My Death?

If I Do Not Have a Will, What Happens Upon My Death?

The state has provided you with a will by the law of descent and distribution, which designates who will receive your assets, who may be your executor, and who may be the guardian of your minor children. The court will decide any ambiguities of your estate, which may be many. Expensive surety costs will be required on the bond of the personal representative and the guardian of any minor child. It should not surprise you that any specific goals you may have will not be recognized and no tax or expense savings will be planned by the court. Without a well-prepared will, you waive all the benefits that planning opportunities provide.

Your nonprobate assets automatically pass to the successor in interest, and this may cause disproportionate distributions among your family members.

Your probate estate is called “intestate” (“without making a will”), and a more cumbersome probate estate is administered (in contrast to a “testate” estate — “with a will”).

Your estate’s legal representative is chosen from a statutory list. Your property is distributed in accordance to the law of descent and distribution. The lawof descent and distribution is state-dependent, and thus one’s heirs may vary depending on the state in which your domicile resides and what property is subject to which state’s law. Illinois’ law of descent and distribution provides the following:

First Level: one half of the probate intestate estate goes to the spouse and the other one half to children or their descendants.

• If no spouse is living, but children or their descendants are, then the entire intestate estate goes to children or their descendants.

• If no children and descendants are living, then the entire intestate estate goes to the spouse.

Second Level: if no first-level heirs exist, then equal shares go to parents and siblings or descendants of siblings (nephews and nieces).

Third Level: if no first- and second-level heirs exist, then one half goes to the maternal grandparents; otherwise, to the descendants of the maternal grandparents; and one half goes to the paternal grandparents; otherwise, to the descendants of the paternal grandparents.

More levels exist in the law of descent and distribution that exhaustively list heirs and takers of the estate.

If there are no living relatives, the estate escheats to the state. This means the state will take your estate for lack of any other person to receive it.  Without a will, intended close friends and charities will never participate in your estate.

If your estate is intestate and you have property subject to multiple state laws by reason of having various property interests subject to various state laws (that property having a “situs” or legal home in multiple states), not only is your estate subject to multiple probates but it also is subject to differing outcomes because of the probable differences in the various state laws of descent and distribution. If you have a minor child, you have forfeited the right to name someone of your choice to act as his or her guardian. The court will decide what is in your minor child’s best interest.

A mess occurs if you do not have a current will.



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