Illinois’ Law of Descent and Distribution

Illinois has codified its law of descent and distribution in the Illinois Probate Act of 1975, 755 ILCS 5/2-1. The Illinois Probate Act lists degrees of heirship. Generally speaking, the closer relations to the decedent take shares of the estate prior to more distant relations. Distribution is partially determined by whether the decedent was married and had children. This list presumes that a will or trust does not exist. The list of heirship is as follows:

• If the decedent has a surviving spouse and surviving children, then the spouse gets half of the estate and the surviving children take the other half of the estate. It has been our experience that spouses prefer to have their entire estate go to their surviving spouse unless the surviving spouse is not the other parent of the decedent’s children. Therefore such a result that arises when no estate plan is in place is generally not desired.

• If there is no surviving spouse of the decedent but there are surviving children (or descendants), then the surviving children take the entirety of the estate.

• If the decedent has no surviving spouse nor surviving descendants, then the estate is split between the decedent’s siblings and parents.

This is only a small portion of the Illinois heirship chart. As you can see, the closer relatives take first, and if there are no close relatives the more distant relatives become heirs. It is also important to note that gifts to children are per stirpes, meaning that if a child is not living but a descendant of the child is living, the descendants of the deceased child take the deceased child’s share.

The Illinois laws of descent and distribution are default rules on how assets are distributed. Often times a person does not like the default rules and would rather specify how his or her assets should be distributed on death. The laws of descent and distribution can be avoided by creating a will and/or trust outlining who should receive the assets upon death. It is important to list contingent beneficiaries however, as it is possible for a scenario to arise where no named beneficiaries are living and the will and trust will direct that the assets be distributed according to the Illinois laws of descent and distribution.