How Is the Probate Process Handled if a Person Did Not Have a Will?

 Posted on March 23, 2022 in Last Will & Testament

After a person dies, issues related to their estate will be handled through a legal process known as probate. If the person had a last will and testament, the executor of their estate will file their will in probate court, take a complete inventory of their assets, pay taxes and expenses on behalf of the estate, and distribute the estate’s assets to the person’s beneficiaries. However, in cases in which a person died without a will, their family members or other heirs may be unsure about how these matters will be addressed.

Intestate Succession

The probate process will usually be required whether a person had a will or not. In cases where the deceased person did not have a will, someone will need to be appointed as the representative of the estate. This may be a family member or another person who was close to the decedent, and they may ask to be appointed by the probate court that is handling the case. The estate representative will carry out the same duties as a person who was named as an executor in a will.

Without a will that provides instructions for the distribution of a person’s assets, an estate representative will need to follow the applicable laws, which are known as the laws of intestate succession. The laws in Illinois state that a person’s assets will be divided equally between their spouse and children. That is, the surviving spouse will receive half of the estate, and the other half will be equally divided among the person’s children. If any of their children have died, their share of the estate will go to their own children or descendants.

Determining who should inherit property can be more complicated if the deceased person did not have a spouse or children. In these cases, more distant family members may inherit assets, starting with their parents and siblings. If necessary, other relatives may need to be identified such as the deceased person’s grandparents, aunts, uncles, or cousins, other descendants of their great-grandparents, or any other relatives that can be located. If a person had no living relatives, the county where they lived will take ownership of their property.

Non-Probate Assets

There are certain types of assets that may be distributed to a person’s beneficiaries without the need to go through the probate process. This may make the process of estate administration easier, even if a person did not have a will. For property that was titled jointly in another person’s name, such as a home co-owned by the person’s spouse, the other party will be able to assume ownership after the person’s death. Assets held in a trust may be distributed to beneficiaries according to the terms of the trust agreement. Retirement accounts with named beneficiaries will be transferred to those beneficiaries, and payable-on-death accounts or other transfer-on-death assets may be transferred to the control of beneficiaries without the need for probate.

Contact Our Wheaton Intestate Succession Lawyers

If you need to address issues related to the estate of a loved one who did not have a will, Stock, Carlson & Asso. LLC can provide the legal help you need. We can assist with the probate process and ensure that the laws of intestate succession will be followed correctly. We can also help your family create an estate plan that will ensure that you will be able to avoid these types of issues in the future. Contact our DuPage County estate planning attorneys today at 630-665-2500 to learn more about the ways we can help you plan for the future.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500050HArt.+II&ActID=2104&ChapterID=60&SeqStart=3700000&SeqEnd=5000000

https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/402582144/chap_1_excerpt_5130245.pdf