Illinois Intestate Succession: Who Inherits When There Is No Will

When someone dies without a valid will in Illinois, they die "intestate." The state steps in and dictates exactly who inherits their probate assets, in what proportions, and in what order. These rules — governed by the Illinois Probate Act of 1975 under 755 ILCS 5/2-1 — apply regardless of what the family understood the decedent's wishes to be.

The intestate succession rules produce outcomes that frequently surprise families. A long-term domestic partner receives nothing. A distant sibling inherits alongside a surviving spouse. An estranged adult child gets an equal share with siblings who provided years of care. The law distributes assets mechanically, not equitably.

Illinois Intestate Succession: The Order of Inheritance

Illinois uses a hierarchical approach. The closer the relationship to the decedent, the higher the priority. Here is the general order:

If there is a surviving spouse and descendants (children, grandchildren):

• The surviving spouse receives half of the estate.
• The descendants share the other half.

This is one of the most commonly misunderstood rules. Many families assume a surviving spouse automatically inherits everything when there is no will. In Illinois, if there are children, the spouse only gets 50% of the intestate estate.

If there is a surviving spouse and no descendants:

• The surviving spouse inherits the entire estate.

If there are descendants but no surviving spouse:

• The descendants inherit the entire estate, divided equally per stirpes (meaning a deceased child's share passes to their own children).

If there is no surviving spouse and no descendants:

• The estate passes in this order: parents → siblings and their descendants → grandparents → aunts/uncles and their descendants → great-grandparents and so on through more distant relatives.

If no relatives are found:

• The estate escheats (passes) to the State of Illinois.

What "Probate Assets" Means in This Context

Intestate succession rules only govern probate assets — property that was held solely in the decedent's name with no designated beneficiary. Non-probate assets pass by their own mechanisms regardless of whether there is a will or not:

• Life insurance with a named beneficiary goes to that beneficiary.
• Retirement accounts (IRA, 401k) with named beneficiaries pass directly to those beneficiaries.
• Bank accounts with Payable on Death (POD) designations transfer automatically.
• Real estate held in joint tenancy passes to the surviving joint owner.
• Property with a recorded Transfer on Death Instrument passes to the named beneficiary.

A person who died "without a will" may have actually directed most of their assets through beneficiary designations, leaving relatively little to pass through intestate succession. Completing a full asset inventory before assuming the worst is essential.

The 30-Day Will-Filing Requirement Still Applies

Even when the estate will ultimately pass through intestate succession, a separate and urgent legal obligation applies to anyone who finds the original will after the death.

Under 755 ILCS 5/6-1, anyone in physical possession of the original will must file it with the circuit court clerk in the county where the decedent last resided within 30 days of learning of the death. This is required even if the will appears to be invalid, outdated, or if the family has decided not to probate the estate. The law requires the will to be deposited — what the court does with it is a separate matter.

Willfully concealing, altering, or destroying a will is a Class 3 felony under Illinois law. Filing the will with the clerk costs approximately $25. Failing to file it — even inadvertently — can cost a great deal more in legal complications.

Filing the will does not automatically open probate. It simply places the document on record with the court. The family then decides separately whether to open formal probate proceedings.

Domestic Partners and Common-Law Marriage

Illinois does not recognize common-law marriage. A couple that has lived together for twenty years but never legally married are strangers to each other under Illinois intestate succession law. If the partner dies without a will naming the surviving partner, the surviving partner inherits nothing. The entire estate passes to the decedent's biological heirs in the statutory order.

Illinois also does not grant inheritance rights to domestic partners who are not legally married. If a surviving partner wants to inherit, the deceased partner must have executed a valid will, a beneficiary designation, or a Transfer on Death Instrument expressly naming them.

Stepchildren and Adopted Children

Adopted children are treated exactly the same as biological children under Illinois intestate succession. They inherit a full equal share.

Stepchildren who were never legally adopted have no inheritance rights under intestate succession, regardless of how long they lived with the decedent or how close the relationship was.

What Dying Without a Will Actually Costs

Beyond the distribution outcome, dying intestate frequently increases the administrative cost and time of settling the estate. When there is no will, the court must appoint an administrator (rather than confirming a nominated executor), which involves additional court filings. If family members cannot agree on who should serve as administrator, the court proceeding can become contested and expensive.

Additionally, the court may require the administrator to post a surety bond — a bond that covers the personal estate at 1.5 times its value if issued by a corporate surety, or 2 times its value if issued with personal sureties. Bond premiums are paid from estate assets and reduce what beneficiaries ultimately receive.

Whether the decedent left a will or not, the process of settling an Illinois estate involves strict deadlines, court filings, and legal obligations that most families encounter for the first time while grieving. The Illinois Estate Settlement Guide covers the full process — from intestate succession to the final distribution — with a step-by-step roadmap and checklists designed for families without legal backgrounds.

See more Illinois guides →