What happens if you die without a will? Although strongly recommended, a person does not have to create a will before they die. A will is one method for transferring assets upon someone’s death, but there are others. And if all else fails, the state of Illinois will step in and keep property from sitting in limbo by transferring it to family members.
When there is no will and property is not transferred by any other means, probate is required to transfer a decedent’s property to the persons who are entitled to receive it under Illinois law.
Not having a will means you lose the ability to direct where your property goes at death. You may also lose some helpful decision-making abilities that can protect you during life. The Chicago estate planning attorney at Plan Forward Legal helps families ensure they are protected during life and after death.
- Why Having a Will is Good Planning for Life
- How to Transfer Property at Death without a Will
- Where there is No Will, Illinois Intestacy Laws Transfer Property at Death
- When You Plan for Tomorrow, You Can Live Better Today
Why Having a Will is Good Planning for Life
A will is a basic estate planning document that many people are familiar with. Its primary purpose is to allow a person to direct where their property will go after they die, yet there are other benefits to having a valid will.
Dying without a will can precipitate family feuds and unintended consequences. Preparing a will lets you be very clear about your intentions and resolve anticipated disagreements, thereby avoiding unnecessary conflict.
You may also choose who you want to be in charge of administering your estate in a will. Family dynamics can make selecting an executor to carry out the provisions of your will an important consideration.
You can also appoint guardians for minor children in a will. Parents can have peace of mind knowing who would be legally responsible for their children and that they will be well cared for.
You will also typically execute other documents, along with a will, that can come into play if you become disabled. Powers of attorney let you appoint a person to handle healthcare or business decisions for you if you are unable to do so. Advanced directives let healthcare professionals know your preferences for certain types of treatment if you are unable to communicate your wishes.
Executing estate planning documents removes doubt as to your desires, avoids unnecessary delays and court involvement, and provides protection for your interests.
How to Transfer Property at Death without a Will
A will only affects property that is subject to probate. Property subject to probate is any property not set up to transfer upon death by some other means. Property in Illinois may be transferred at death without a will in the following ways:
Pay on Death Beneficiary
Property such as bank accounts, investment accounts, retirement accounts, and life insurance allows owners to designate a pay-on-death beneficiary and avoids probate. Upon the account owner’s death, the account balance immediately vests in the beneficiary or beneficiaries.
Right of Survivorship
Real and personal property can be co-owned as a joint tenancy. When one owner dies, the portion they owned vests immediately in the survivors. Ownership documents must clearly reference ‘joint tenancy’ to create survivorship rights.
Tenancy by the entirety is a special kind of joint tenancy for married couples who own their primary residence. In addition to survivorship rights, the surviving spouse inherits the property free of responsibility for the debts of the deceased spouse.
Transfer on Death Instrument (TODI)
Owners of real estate in Illinois can use a transfer on death instrument to transfer property to any named beneficiary. The TODI must include a legal description of the property and state that the transfer will occur upon the owner’s death.
The document must be executed with specific formalities and recorded in the county where the property is located during the owner’s lifetime.
Trust
Trusts are legal entities that can own, manage, and distribute property. Revocable trusts are often used in estate planning because the creators can maintain control of trust property during life and have it distributed upon death without going through probate. Property is not owned by a trust unless titled in the name of the trust.
Where there is No Will, Illinois Intestacy Laws Transfer Property at Death
When someone dies without a will, a family member or other interested party must file a petition with a court to initiate probate. The court will appoint an administrator responsible for inventorying assets, paying debts, and distributing the remaining property to heirs.
Distribution under intestacy laws begins with a decedent’s immediate family and becomes more remote if there are no immediate family members.
- 50% to a surviving spouse, 50% equally between children of the decedent (a deceased child’s share equally among grandchildren)
- No surviving spouse, 100% equally among children (a deceased child’s share equally among grandchildren)
- No surviving children, 100% to the surviving spouse
- No spouse and no children, in equal shares to parents and siblings
If parents and siblings (or descendants of siblings) don’t exist, then the statute looks toward grandparents and their descendants. If no appropriate heirs can be located, the property of a decedent will be claimed by the state.
Small Estate Affidavit
The small estate affidavit is an alternative to probate with or without a will when a decedent’s estate consists of only personal property and is valued at $150,000 or less, plus the value of any motor vehicles registered with the Secretary of State.
A small estate affidavit cannot be used if probate has been started or until 30 days have passed since a decedent’s death. Intestacy laws govern property distribution with a small estate affidavit when there is no will.
When You Plan for Tomorrow, You Can Live Better Today
We get it. Nobody really wants to think too much about dying. Creating an estate plan is something you will get around to when you get around to it. But here’s the thing. None of us really knows when the particular tomorrow we intend to prepare for will come our way.
Estate planning is responsible risk management. Planning for contingencies keeps you in control as much as possible when the worst kinds of things occur. Don’t wait and let life happen to you. You deserve better. Call Plan Forward Legal, and let’s get it done.
