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In Illinois, What Does 'Intestacy' Mean?

When researching the estate planning or probate process, you’re likely to run into plenty of unfamiliar terms or phrases – many of which can end up having fairly significant legal ramifications when you run into them in practice!

One such word may be “intestacy.” You may read that someone has “died intestate,” or that “intestacy laws” applied to some estate or another.

As with so much seeming legalese, it’s important to realize “intestacy” is more than just a word: It’s a vital concept to understand when it comes to estate planning and administration in Illinois. So, what exactly does it mean?

Intestacy: Guiding an Estate Without a Will

Broadly speaking, you may think of intestacy as the condition that an estate is left in when an individual dies without leaving behind a valid, enforceable will or other such declaration; it may also apply to an estate with significant gaps, where the will fails to clearly cover all of the decedent’s assets.

In the Chicago area, when a person dies intestate – that is, without leaving behind any legally-binding guidance for what to do with their assets and property – there is a fairly straightforward process that goes into effect, as determined by the Illinois Probate Act.

One important thing to understand about dying intestate? When this occurs, and someone dies without an actionable estate plan in place, this individual is largely leaving the administration of their estate, and the distribution of their assets, up to state and local laws.

Who Administers an Intestate Estate?

First and foremost, leaving an intestate estate means that the decedent is missing out on their chance to name their own estate representative, often called an executor. Should someone die without a will – the document which typically names the executor of an estate – it becomes the court’s responsibility to name an estate administrator.

In Illinois, there are a few restrictions as to who may be appointed as the administrator for an intestate estate, as well a distinct order in which individuals are preferred to serve. Broadly speaking, an administrator must usually be at least 18 years of age, of sound mind, and free of felony convictions; people are typically called to serve in the following order of preference:

  • Surviving spouse (or any person nominated by the surviving spouse)
  • Legatees
  • Children of the deceased
  • Grandchildren
  • Surviving parents
  • Brothers and sisters
  • Nearest kin
  • Public administrator, appointed by the court

One important thing to note: In Illinois, a surety bond is generally required for anyone named to be an estate representative, which helps ensure that the appointed administrator performs their duties completely on the estate’s behalf; in contrast, executors named by the decedent are often exempted from this requirement.

Heirs of the estate, too, must also be notified by anyone petitioning to be named as the administrator of an intestate estate, so that they may take the opportunity to raise any objections about a potential administrator.

How Are Distributions Handled for an Intestate Estate?

Once the intestate estate begins to go through probate, it’s also important to bear in mind that the decedent’s assets must be distributed by the priority list set down by the Probate Act.

Thus, the decedent has no control over how their assets are given out, since they have not specifically accounted for all of their assets or taken steps to otherwise disinherit certain parties. In some cases, this can result in assets being distributed to estranged children or other relatives who may have had a tenuous, or even negative, relationship with the deceased when they were alive.

For a more complete look at the priority of distributions in Illinois, we examine a few possible scenarios for disbursement here.

Next Steps

To avoid the confusion and complications that may come with an intestate estate, many people prefer to create an estate plan, which may offer guidance, financial security, and peace of mind for their friends and family members in a difficult time. With that said, many fall short of creating a comprehensive, functional estate plan, and more than half of all Americans do not have an up-to-date will.

Similarly, acting as the administrator for an intestate estate can be a frustrating process under the best of circumstances, with the potential for both commonplace and unexpected complications to crop up at any time.

In either case, sitting down with an experienced, professional attorney, well versed in matters of estate planning, probate, and estate administration, may help to alleviate some of the stress that comes with estate planning and administration. That’s where our team can help! Don’t hesitate to drop us a line today with any questions or concerns!


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