Intestacy Laws

Chicago Intestate Lawyer

Chicago Estate Planning

What It Means to Die Intestate

The laws of intestacy apply when you die with “probate” assets in your estate. Probate assets are those you own as an individual. No surviving joint tenant, no effective beneficiary designation with financial institution, not in trust or subject any other written contractual arrangement. Without a will, probate assets pass to your intestate heirs, determined by the laws of intestacy in the state where you reside at the time of your death.

Intestate distribution varies from state to state, but operates purely by formula. Usually, when a spouse and children survive you no other people participate in your intestate estate. If you have either a spouse or children, but not both, your spouse or children may have to share your assets with your parents. If parents and siblings are the closest in consanguinity, then either your parents are preferred or your parents and siblings all participate. If only one parent survives you, that parent sometimes gets your deceased parent’s share as well. If a sibling is deceased, then if it’s per stirpes then that sibling’s descendants get a piece of the pie.

Getting further away from the concept of a “big” family, if you have no spouse, descendant, parent, sibling, nephew, niece, great nephew or great niece survives, your personal intestacy tree may look as far as your dead great-grandparents and their descendants to include aunts, uncles and cousins of varying degrees. In a few states, the families of your deceased spouse may also be entitled to something. In most states, half brothers and half sisters are treated like full siblings. That status may also extend to other “half” relatives (sharing an ancestor), but rarely to “step” relations (where their only connection is through marriage).

Persons conceived but not born at the time of your death are often considered the same as already-born heirs. Sometimes the share of your spouse versus the share of your children will be affected by whether you or your spouse had children who were not children of the other. In some states, the length of your marriage is a factor. If you have never been married and have no family descending from common ancestry going as far back as your great-grandparents (assuming that you don’t live in one of the few states where your spouse’s family would participate as intestate heirs), your estate will likely “escheat;” in other words be transferred to the state in which you lived – with real estate ownership going to the county in which it is located. Escheats are pretty rare, but they happen to the last one standing.

Some states’ intestacy laws distinguish between personal property and real estate. Automobiles sometimes get special treatment. If you live in one nine community property states and leave a surviving spouse, the law usually distinguishes between community property assets and separate property assets in making intestate distributions.

You can easily obtain additional information on intestacy over the Internet. Using a search engine, type in “(name of the state where you have assets or expect to die)” and “law of intestacy.”

If you want your probate assets distributed to anyone other than to your intestate heirs, you must either:

  • own the assets in trust; or.
  • put your wishes in a will; or
  • specify beneficiaries with the financial institution (bank, broker, mutual fund, insurance company, IRA custodian, etc.) through “payable on death” (POD) or “transferable on death” (TOD) designations; or
  • designate beneficiaries by contractual agreement, such as a buy/sell agreement; or
  • own the assets in joint tenancies (provided the joint tenant survives you).