Two Main Reasons to Avoid Intestacy in Illinois

 Posted on February 05, 2025 in Estate Planning

Whenever someone dies without leaving behind an enforceable will, intestacy laws apply to anything in their estate. Leaving inheritance and other matters up for the state to decide often has unintended consequences, delays, and disadvantages for surviving family members. There are several ways a valid will can prevent that from happening. A knowledgeable Illinois estate planning lawyer can explain the drawbacks of intestacy laws and help you draft a will you can be comfortable with.

Reason #1: Decision-Making

Who Gets Your Assets?

If you die without leaving a valid will, you are not voicing your wishes for how your assets should be divided. The power to make those decisions is transferred to the state.

The Illinois Probate Act has guidelines for such situations: if you have a spouse and children when you die, assets are split equally among them, with your spouse receiving one half and the other half divided by any children; if you do not have a wife or children, your assets might go to your parents, siblings, or even more distant relatives, depending on your specific situation; if the state cannot locate any eligible heirs, your estate could go through the escheat process and be claimed by the state of Illinois.

This rigid formula was put in place to help address unclarity, but depending on your family dynamics, personal wishes, or loved one’s specific needs, it might not end up allocating your assets as you would have liked.

Unintended Consequences

Leaving these decisions up to the state is also not ideal because it can lead to unintended beneficiaries and exclusions. This can be particularly relevant if you have personal relationships that are not recognized by the law, for example, if you are in a committed, long-term relationship but not legally married. Other people who might be important to you but would not be entitled to anything under intestacy laws include stepchildren, foster children, and close friends.

Guardianship Challenges

In addition to the future of your assets, the future of your minor children could also be decided by the state. If you pass away without a will, the court decides who becomes their legal guardian. While courts always aim to determine what would be in a child’s best interest and use that as a basis for all decisions, it is not the same thing as having a parent make those decisions. The court could easily appoint someone who would not have been your choice to raise your children.

Reason #2: Probate Takes More Time and Money

When there is no will and intestacy laws apply, your estate has to go through the probate process. This can be expensive and time-consuming. Rather than following your instructions for how you want your estate divided, the court needs to appoint an administrator, decide who the rightful heirs of your estate are, and oversee how your assets and debts are distributed.

Depending on what your estate contains and whether there are disputes among the heirs, probate can take months or even years. While your assets are held up in this lengthy process, legal fees and court costs are also racked up, which means that any assets handed over to your heirs can be significantly reduced in value by the time they finally receive them.

Contact a DuPage County, IL Estate Administration Lawyer

As uncomfortable as it might make you feel to think about your death and write a will, avoiding intestacy is crucial for protecting your loved ones and having a say in how your assets are distributed. At A. Traub & Associates, we have experience helping clients draft comprehensive estate plans—including a will, trust, and other legal documents—to prevent time-consuming and expensive probate, family disputes, and unintended consequences. Call A. Traub & Associates at 630-426-0196 to consult with someone on our dedicated team of Lombard, IL estate law attorneys.