Intestacy is Bad!

How the State of Illinois Intestate Succession Law Determines the Distribution of Your Assets if You Die Without a Will

By Richard Magnone © 1997, 2010

If you die without a will, your estate will pass to your relatives based upon a set of laws determined by the legislature of the State of Illinois and embodied in the state’s probate code.

Click here to see the text of the Illinois Intestacy Statute

In most cases, the choices made for you by the legislature will not be in line with your needs or desires. Here is an example of how your estate will be distributed according to Illinois law in the event that you die with a spouse, a child and without a will:



I am now married to SPOUSE CITIZEN and have one child, namely: CHILD CITIZEN.


I give, devise and bequeath one half of my entire estate, both real and personal, to my spouse, if said spouse is living at the time of my death and one half of my entire estate to be divided equally among any children I have living at the time of my death or the then living descendants of my deceased children, per stirpes.

In the event that my spouse predeceases me, then I leave my entire estate to be divided equally among any children I have living at the time of my death or the then living descendants of my deceased children, per stirpes.


In the event that any of my children are minors, it is my intention that the Probate Court of the county in which I live open a minor’s guardian estate to administer the property of my minor child. I wish that all of the court fees and guardian’s expenses be paid out of my child’s share of the estate. I wish that the court, rather than myself, decide the identity of the guardian of my child’s property.  It is also my wish that my minor children’s next of kin fight over the guardianship and custody of the person of my minor children in the Probate Court.

It is further my wish that upon reaching age 18, my child be given the entire guardian estate outright with no restrictions or limits to be spent as my child sees fit without regard to my child’s educational needs nor my child’s health and welfare.


It is my wish that I do not choose any person to administer and act as personal representative of my estate. Instead, it is my wish that any person who has attained age 18, is not of unsound mind, not adjudged disabled, and not convicted a felon may act as estate personal representative. This person may be nominated, subject to court approval, by my spouse, if alive, or if not, to anyone entitled to take under this will, but with a preference toward the nomination made by any of my children.

It is my desire, rather than waiving the surety bond requirement via a will, that the administrator pay an insurance company for a bond in the amount of one and one half times the value of my estate.

Article V

I do not wish to set up any estate planning vehicles such as testamentary trusts and it is my desire that if my estate exceeds 2,000,000 (assuming the estate tax exists as it did in 2009), that any amounts over that amount not distributed to my spouse be taxed by the Federal government at a tax rate as high as 45%.

The Moral of the Story

Please, even if you do no other estate planning: get a will! The law of the State of Illinois does not require that you have a will, but it is wise to have one prepared so that you can be assured that there will be instructions in place to determine what will happen after you die. The “Will” above illustrates just a few of the provisions of the Illinois intestacy rules which may have adverse consequences on your family or which may be contrary to your wishes. A well drafted will, drawn by an attorney, with your careful consideration as to your property can assure that your wishes are followed. You can have the certainty that your assets are received by persons of your choice and that the responsibility of administering your estate falls with a person or institution you trust. You can also have the peace of mind that comes from knowing that your wishes as to the care of your children and their assets will be known. Please do not rely upon this will as a form will for the State of Illinois nor as a document to use in preparing your estate plan!