Illinois Probate and Intestate Succession: What Happens Without a Will (2026)

Illinois probate runs through the Probate Division of the Circuit Court in each county, a structure created in 1964 when Illinois abolished its separate probate courts, and Illinois is one of the roughly dozen states that still levies its own state estate tax.

Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.

How Probate Works in Illinois

Illinois folded its once-separate probate courts and county courts into the Circuit Court system in 1964, so today probate runs through the Probate Division of the Circuit Court in the county where the decedent lived, such as the dedicated Probate Division of the Circuit Court of Cook County. The governing law is the Probate Act of 1975, codified at 755 ILCS 5/. Illinois has not adopted the Uniform Probate Code, and it does not use the informal or formal terminology those states use.

Instead, the key distinction is independent administration versus supervised administration. Independent administration, the default for most estates, lets the executor sell assets, pay debts, and distribute property without seeking court approval for each step; the executor typically appears in court only twice, at appointment and at final closing. Supervised administration requires court approval for essentially every major step instead. Supervised administration is not automatic. Under 755 ILCS 5/28-2(a), the court grants independent administration unless the will expressly forbids it or supervised administration is required under subsection (b), so independent administration is the starting point even when there is no will at all. Supervision follows when an interested person objects: where a will directs independent administration, the objector must show good cause under 28-2(b)(1), but where no will directs it, an objecting heir or residuary legatee gets supervision as of right. The court may also require supervision to protect a minor or a person with a disability whose interests are not otherwise adequately represented.

Once appointed, the personal representative must publish notice to creditors once a week for three successive weeks under 755 ILCS 5/18-3. Claims must be filed by a date at least 6 months after the date of first publication, or 3 months after the claim was mailed to a known creditor, whichever is later; any claim not filed by then is barred. A separate section, 755 ILCS 5/18-12(b), adds an absolute outer bar: claims that could have been barred are in any event barred 2 years after the decedent's death, whether or not letters of office are issued. In practice, most independent-administration estates close within about 9 to 12 months, while supervised or contested estates commonly take 12 to 24 months or longer.

Intestate Succession in Illinois: Who Inherits Without a Will

When an Illinois resident dies without a valid will, 755 ILCS 5/2-1 sets the order of inheritance. If a spouse and one or more descendants both survive, the estate splits evenly: the spouse takes one-half and the descendants split the other half per stirpes. Unlike many modern Uniform Probate Code states, Illinois draws no distinction based on whether the children are also the surviving spouse's children or from an earlier relationship; the 50/50 split applies either way. If descendants survive but no spouse does, the descendants take the entire estate per stirpes. If a spouse survives but no descendants do, the spouse takes everything.

Watch out: Because Illinois always splits an intestate estate 50/50 between a surviving spouse and descendants, a surviving spouse in a blended family can end up with a meaningfully smaller share than in a state that gives the spouse more when all the children are shared with that spouse. This surprises people who assume every state's default rule protects the surviving spouse first.

If neither a spouse nor a descendant survives, 755 ILCS 5/2-1 moves the estate to parents and siblings, and the descendants of any deceased sibling, in equal parts, except that a surviving parent takes a double share if the other parent predeceased the decedent. If none of those relatives survive, the estate passes equally to the decedent's maternal and paternal grandparents or their descendants, and the same principle extends to great-grandparents if no grandparents survive. If there is no surviving spouse and no known kindred at all, 755 ILCS 5/2-1(h) splits the escheat three ways: real estate escheats to the county where it is located; personal property physically located in Illinois, along with out-of-state personal property that is the subject of an ancillary administration here, escheats to the county where the decedent was a resident; and all other personal property, wherever situated, escheats to the State of Illinois and is delivered to the State Treasurer under the Revised Uniform Unclaimed Property Act. Illinois is a common-law, separate-property state, so none of the community-property rules that apply in states like Idaho or Texas apply here.

One way to make sure your property goes to the people you actually choose, rather than following Illinois's intestate succession order, is to have a valid will in place. recordinglaw.com's free Illinois Last Will and Testament Generator can help you create one, with no account required.

Small Estate and Simplified Probate in Illinois

Illinois lets heirs bypass formal probate entirely for a small estate. Under 755 ILCS 5/25-1, an estate qualifies for the small estate affidavit procedure if it holds $150,000 or less in personal property, a threshold that applies to decedents who died on or after August 15, 2025 (deaths before that date still use the prior $100,000 cap). Registered motor vehicles do not count toward the cap at all, which can meaningfully help estates that include a car but little else. No probate case is opened; instead, an heir or representative signs a sworn affidavit that accounts for the decedent's known debts and funeral expenses, and presents it directly to the bank or institution holding the asset to have it released.

Illinois Estate Tax

Illinois is one of roughly a dozen states that levies its own state estate tax, separate from and with a far lower exemption than the federal estate tax. As of 2026, Illinois's exemption is $4,000,000, a figure that has been frozen for over a decade, is not adjusted for inflation, and is not portable between spouses. Above that threshold, Illinois uses a graduated rate structure carried over from the old federal state death-tax-credit table, running from 0.8% up to a top rate of 16% on adjusted taxable estates above roughly $10.04 million. The executor must file Illinois Attorney General Form 700 if the gross estate plus adjusted taxable gifts exceeds $4,000,000.

Watch out: Illinois's $4,000,000 estate tax exemption is a cliff, not a bracket-style credit. Once an estate's value crosses that threshold, Illinois computes tax on the entire estate, not merely the amount above $4,000,000. An estate that clears the line by even a small margin can face a materially larger tax bill than one that stays just under it. Illinois has no separate inheritance tax, so this state estate tax is the only Illinois-specific transfer tax to plan around.

Do You Need a Probate Attorney?

Illinois's independent administration process is designed to let straightforward, uncontested estates move through probate without heavy attorney involvement once an executor is appointed. A probate attorney is worth engaging when a will is contested, when supervised administration is ordered or requested, when the estate is close to or above the $4,000,000 state estate tax exemption, or when the family situation is blended in a way that could affect how heirs interpret the 50/50 spousal split. For how probate works in other states, see Probate by State.

Disclaimer

This article provides general information about probate and intestate succession in Illinois as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in Illinois, particularly for a contested estate, a business interest, a blended family, or an estate near or above the $4,000,000 state estate tax exemption. Figures, thresholds, and statutes cited reflect their in-force version as of the verification date; confirm current details directly against the Illinois Compiled Statutes before relying on any figure here.

---

Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.

More Illinois Laws

• Illinois Child Custody Laws
• Illinois Divorce Laws
• Illinois Power of Attorney Laws
• Illinois Unclaimed Property