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What Happens When Someone Dies Without a Will in Illinois?
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Upon the death of an individual in Illinois, his or her property (the "estate") must be collected and distributed either by will, or in the absence of a valid will, by a process called intestacy. Thus intestacy may result if either 1) the deceased person never had a will created or 2) the deceased persons’ will did not comply with Illinois law.
Under either scenario, intestacy is basically a pre-set formula under Illinois law to determine how the deceased person’s property will be distributed among the heirs (close relatives) of the deceased. The distribution will depend on such factors as 1) whether the deceased person was survived by a spouse, 2) whether the deceased person had children, and 3) whether the deceased person had any brothers and sisters.
Before beginning the distribution of property under the applicable intestacy formulas, the court must "open the estate" and approve an "administrator" of the estate to carry out the distribution. Because the deceased did choose anyone for these responsibilities in a will, there is no administrator automatically appointed. Instead, individuals seeking to serve as administrator must file a "petition for letters of administration" with the court. Under Illinois law, there is an order of preference for individuals seeking to serve as administrator: 1) surviving Spouse, 2) legatees (someone set to receive property through intestacy), 3) children, 4) grandchildren, and 5) brothers and sisters. If two or more persons with equal order of preference file petitions, the court has discretion to choose an administrator. If no suitable individual comes forward to serve as administrator, the court may appoint a "public administrator" from the county in which the deceased resided.
Once an appropriate person is chosen to serve, the court will open the estate and issue "letters of office" officially appointing an administrator. The letters of office will typically designate the administrator as a "supervised administrator" (requiring prior court approval before most actions) or an "independent administrator" (requiring minimal court supervision).
In either case, the administrator’s duties typically include resolving claims against the estate, collecting and protecting estate assets (including debts owed to the estate), and carrying out the distribution of assets according to Illinois intestacy law. Additionally, the administrator typically must purchase a "surety bond" which is similar to an insurance policy to make sure the administrator does not just keep the deceased person’s property for themselves.
In carrying out these duties, the administrator typically hires an attorney to assist them with the accompanying responsibilities. An effective attorney can help an administrator unfamiliar with the intestate process identify the appropriate heirs and navigate the court system. Effective legal assistance in this area helps avoid excess costs that could reduce the value of the estate and the property that passes to family members.
The entire probate process may take anywhere from six months to several years depending on the size and complexity of the deceased person’s estate. Once opened, an estate stays open for at least 6 months to allow creditors and other interested parties to file claims against the estate assets.
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