Inheritance when the Decedent Dies Without a Will

Inheritance when the Decedent Dies Without a WIll is governed by the Rules of Descent and Distribution in Illinois.  These rules in an Intestate Estate are the guidelines by which the assets of a decedent who dies intestate (without a will) are passed on after death.  Assets are only distributed after the payment of claims and expenses of administration of the estate.  Heirs at Law are identifed when the estate is opened, and upon the presentation of an Affidavit of Heirship.   The court will enter an Order declaring Heirship, based on the rules of descent and distribution.

In Illinois, the Rules of Descent and Distribution are set out in 755 ILCS 5/2-1 of the Probate Act.

More simply put, intestate estates are distributed as follows:

  • When the decedent leaves a spouse and children:  1/2 to the surviving spouse, and 1/2 divided between the children, and if a child is deceased, to that child’s descendants  (or per stirpes)

Example:  Joe dies, leaving his wife, Joan, and three adult children, Jill, James and Julie.  One child, John, died before Joe, and left 3 children.  Distribution of Joe’s estate: 

50% or 1/2 to Joan

12.5% (1/4 of 50%) to Jill, James & Julie

4.16% (1/4 of 12.5%) shared equally by John’s children 

  • When a decedent leaves only children:  the assets are split equally between the children, and if any children are deceased, their shares passes to their descendants in equal shares;


  • If the decedent leaves a spouse, but no children, all assets go to the spouse;


  • If the decedent has no spouse and no children, but leaves parents, or siblings, or descendants of a deceased sibling, the assets are shared equally among the parents and siblings, leaving a double share to a parent if the other parent is deceased, and with each deceased sibling share being shared equally by his or her descendants.


More complicated issues of heirship, and thus descent and distribution, result when a decedent dies intestate, never having married, and leaving no parents, children, brothers or sisters, or descendants of a brother or sister.  In these cases, hiership will be traced back to maternal and paternal grandparents, with distribution to their descendants.

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Click here for more information regarding the court’s role in determining distribution in intestate estate:

For more information on the Rules of Descent and Distribution in an Intestate Estate, or to schedule a consultation with Christine C. Karr