Do you have a plan for the allocation of your property and assets in the event of your death? Such concerns can be difficult to address, as many people, including a large number of my clients, have trouble with the concept of death and estate planning. It is extremely important, however, to formalize arrangements for your estate well in advance. As uncertain as the future may be, leaving your estate in the hands of the state without a will or other direction can be even more unpredictable. Personal assets that are not addressed in a will or a trust are known as intestate property and will be allocated by the state in accordance with its intestacy laws.

Intestate Succession

The condition of intestacy is created, generally, when a person dies without a will. In the event a will was created but did not make provisions for certain assets or contain broader provisions for unaddressed assets, intestacy laws are applied to the specific, unaddressed property. When a person dies intestate, Illinois law requires that all debts and obligations of the deceased must be satisfied before any property may be allocated. Once that is completed, a seemingly endless list of “if-then” possibilities govern how the estate is to be divided.

For example, if a person dies intestate, leaving a spouse and children, then intestacy laws provide that the spouse receives half of the person’s assets, and the children receive the other half. If the deceased has children but no living spouse, the children inherit everything. The same would be true in reverse: with no children, but a surviving spouse, the spouse would inherit the entire estate. When a person dies intestate with no spouse or descendants, the law then looks to parents and siblings of the deceased, and the complexities increase.

The very idea of estate planning can be frightening for many people, as it is not easy to confront the realization that nobody lives forever. Drafting an estate plan that includes a will, trusts, and other documents requires you to look past the end of your own life. While the difficulties associated with estate planning are understandable, it is critical to have an estate plan. If you were to die without a will or other estate plans, most of your property would probably be subject to the intestate succession laws of Illinois.

What Does “Intestate” Mean?

A particular asset is deemed to be “intestate” if there is no direction specified for how the asset will be disposed of following the owner’s death. Jointly owned property is not usually intestate because the ownership of the joint property will generally transfer to the other owner or owners. Likewise, an investment account that has named beneficiaries or a transfer-on-death clause is not an intestate asset. The named beneficiaries will receive the funds in that account when you die. However, if you are the sole owner of an asset and you have not established legally enforceable instructions on handling the asset upon your death, the asset will be treated as intestate property.

Intestate Succession Laws

The laws governing intestate succession in Illinois are contained in the Illinois Probate Act. Intestate property allocation will depend on your specific circumstances, including your surviving spouse, any children, and other family members. Intestate succession can become extremely complicated, however, as the law provides for a wide variety of possible situations.

There are almost countless ways that drafting a last will and testament can benefit you and your loved ones. With that in mind, it may surprise you to learn that only about 40 percent of Americans currently have a will or other estate planning document in place.

There are many reasons that people choose not to create a will. Some may not understand exactly what the purpose of a will is. Others may inaccurately assume that only wealthy people need a will. Perhaps the biggest reason that people procrastinate estate planning is because it deals with what happens if they become incapacitated or pass away. Although it can be an uncomfortable subject to consider, it is very important for everyone to have a will – regardless of wealth or age. When someone dies without a will, it is often their surviving loved ones who are most negatively affected.

You Relinquish Control Over Significant Financial and Personal Decisions

Even if you are not wealthy, you still own property and items which have value to you. Drafting a will allows you to decide how property, including sentimental items or family heirlooms, is divided among heirs. Without a will, your property is assigned to heirs according to Illinois state laws regarding intestate succession. It is very unlikely that the items most important to you will end up with the individuals you wanted them to unless you specify this in a will, trust, or other estate planning document. If you pass away without a will, your surviving loved ones will be forced to guess how you wanted your property to be distributed. This can be especially burdensome for people who are grieving a loss.

According to several recent surveys, about 55 percent of American adults do not have a will. Of those, approximately 60 percent say it is simply because they have not had the chance to create one, but human nature suggests that there may be another motive. Many people are simply unwilling to consider their own mortality and to face the reality of death. Unfortunately, this can lead to serious consequences, even for those who do not have particularly large estates. Unfortunately, dying without a will or other estate planning tools can lead to some unpleasant consequences.

Depreciation of Assets

There are a number of reasons that assets may depreciate after death. It could be due to the red tape and time it takes to go through the Illinois probate system. Alternatively, valuable funds may need to be spent on tracking down family members that you might not have even had planned to inherit (or may very well be deceased). Taxes, which often end up being higher in the absence of a will, can also affect the value of the estate. Regardless of the reason, the absence of a will makes depreciation almost unavoidable.

Family Disputes

Families do not often intend to fight over items of value. Sometimes, it is simply a manifestation of troubling economic times. In other situations, it is because one family member has an emotional attachment to an item that is separate from its appraised monetary value. In still others, there are issues of speculation and feelings of being betrayed that may play a role. By taking the time to create a will, you can help your family members avoid such issues after your death.

The passing of a loved one is almost always a terrible ordeal to endure. When a relative passes without a will, the process of managing the deceased person’s final affairs only adds to the difficulty. A person who dies without a will is considered to have died “intestate.” Illinois intestacy laws determine how a person’s property and debt are distributed after their death when a valid will is not present.

Laws of Intestate Succession When No Valid Will Exists

The rules regarding how a deceased person’s property should be divided are largely dependent on the deceased person’s surviving relatives. When a single person with no children passes away, his or her estate will go to his or her parents or siblings. If that person does not have living parents or siblings, their estate will go to nieces and nephews or more distant relatives. If an unmarried person with children passes away, their estate will go to their children. If a married person passes away, their spouse will usually receive the part of the estate which is considered marital property. Unfortunately, unmarried couples do not have any legal right to their partner’s property if that partner passes away without a will.