No matter how we try to deny it none of us are immortal. We will all die some day, and so we need to be prepared. In the US there are two basic ways to deal with who gets what when you die, to make a will (also called a testament) or not make a will.
If you die without a will you will be intestate. This basically means that you didn’t give any directions about how you want your stuff to be distributed among your family and friends. In this case, the State of Illinois will step in and distribute your assets according to our laws, essentially acting as your executor. When you die, everything you owed on the day you died is called your estate.
Let’s be clear about one thing. It doesn’t matter if you die a millionaire or with nothing but a change of clothes. No matter what your estate consists of, you must go through probate. In order for your children to get legal title the car, the house, a handkerchief, or a wad of gum, your estate must be probated. This is the law in every state in the US.
If you die and your heirs probate your estate under the intestacy laws, your estate will be distributed per stirpes. Per stirpes is a funny legal term for by generation.
For example: Alice dies living $100,000 after taxes and all the other expenses of dying. She died without a will. Her son Brandon is dead, but has two surviving children, Brandon Junior (BJ) and Brenda. Her daughter Cathy survives her. Cathy would receive one half of Alice’s estate or $50,000. Brandon would receive the other $50,000, but because he predeceased Alice and the dead can’t inherit, the money goes to his children. BJ and Brenda will both receive $25,000, one half of their father’s share.
However, if the decedent’s spouse survived the situation would be a bit different. Under Illinois 5/2-1, if the decedent is survived by their spouse and a descendant, the spouse will receive one half the estate and the other half will be distributed to the descendants per stirpes.
For example: Ed dies leaving $100,000, just like Alice. Ed is survived by his wife Susan, his son Patrick, and his daughter Amy. Also like Alice, Ed dies without a will. One half his estate ($50,000) will go to Susan. The other $50,000 will be divided by Patrick and Amy.
If the decedent is survived by only his/her spouse and does not have any living descendants, then the entire estate would go to the surviving spouse.
Things get infinitely more complex if the decedent is not survived by a spouse or descendants but is survived by other family. In that case the estate is divided “upstream”, first to the decedent’s parents and siblings, then divided in half between the decedent’s maternal and paternal relations.
For example: Stuart dies intestate. He is unmarried and has no children. His parents and sister survive him. Each survivor would get one-third of Stuart’s estate. If one of Stuart’s parents predeceased him then the surviving parent would get two-thirds of Stuart’s estate and his sister one-third.
If Stuart’s parents and siblings predeceased him, then one half of Stuart’s estate would be divided between his nearest surviving maternal relatives and the other half between his nearest surviving paternal relatives.
The reason behind this is to make sure a decedent’s possessions go to members of his/her family. However, if the decedent survives all of his/her blood relations that can be identified, the estate will pass to the county where the decedent died or in the case of real property, the county where the property is located.
Therefore, if you want to make sure that a friend or significant other receives a certain something when you die you need to make a will. This will insure that your wishes are known after death.