If you die without a valid will in Illinois, the law will determine what happens to your children, property, and remains, and there’s a good chance they won’t be taken care of in the way you would have wanted. A will allows you to make these important decisions yourself, rather than having the law make them for you. Individuals need to be aware of the risks and consequences of failing to make a valid will. Here are some common issues that arise when a person dies without a will:
- You won’t be able to choose who takes care of your kids. Most people think of a will as a set of instructions for what to do with their property when they die. For parents, it’s also essential to provide for the care of their children. If you have a will, you can designate a guardian for your children after you die. If you don’t have a will, then a court will appoint a guardian, who may or may not be a person you would want to raise your children after you pass away.
- You won’t be able to choose who administers your estate. If you have a will, you can designate a person to be responsible for handling your estate after your death, such as gathering your property, making distributions to your beneficiaries, and handling your remains according to your wishes. If you don’t have a will, an administrator will be appointed in accordance with the law. The administrator might not be a person you’d have chosen and might not make decisions in the way you’d want them to.
- Your surviving spouse may receive only half of your property. You may be surprised to learn that your spouse may not receive all your property if you die without a will. If you have children, then your surviving spouse will be entitled to only half of your property, per Section 2-1(a) of the Illinois Probate Act. Your children will receive the other half. Your will can provide that your surviving spouse will receive all your property upon your death.
- Only family will receive property from your estate. Do you have an unmarried life partner or someone else who is “like family” whom you want to receive a share of your estate upon your death? If you die without a will in Illinois, they will receive nothing. The Illinois Probate Act has strict rules for how your property will be distributed if you die without a will. Generally, your legal spouse and children are the first to receive your property if you die without a will, and extended family members are next in line. Anyone who is not related by blood, marriage, or adoption is not entitled to a distribution of property from your estate. These rules do not apply if you have a will, which can designate anyone you want to receive property, including individuals who are not in your immediate family.
- You won’t be able to leave specific property to anyone. Would you like to ensure that your house is passed on to a particular child after you die? Or that another child or friend receives a specific heirloom or keepsake? These are examples of “specific bequests.” Unfortunately, the Illinois Probate Act does not provide for specific bequests for people who die without a will. All your property will be collected, sold, and distributed in accordance with the law, including items that you would have wanted to give to a specific person. If you have a will, you can designate as many specific bequests as you wish to ensure that all your property goes to the people you want to have it.
- You won’t be able to disinherit anyone. Is there a black sheep in your family whom you want to leave out of your will, or a child you know will waste any inheritance they receive? Unless you have a will, they will receive the full portion of your estate they are entitled to under Section 2-1 of the Illinois Probate Act, whether you like it or not. Suppose you have a will, on the other hand. In that case, you can exclude anyone you choose from receiving any share of your estate, or you can designate a third party to manage the inheritance of a beneficiary.
- You won’t be able to decide what happens with your remains. If you die without a will, you may not be able to designate who is responsible for caring for your remains, what will happen to them, whether you will be cremated, where you will be buried, who will pay for the cost of disposing of your remains, or whether any of your organs may be donated. Those decisions may be made for you under the Illinois Disposition of Remains Act and the Illinois Anatomical Gift Act. If you have a will, however, you can provide instructions for how all these matters should be handled.
In conclusion, it is advisable to seek qualified guidance to ensure that your affairs are in order and that your family, property, and remains will be appropriately cared for after your passing.