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What Happens When Someone Dies Without a Will?

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Intestate is the term used by the court system to identify a person who has died without a valid will. The scenario is one in which the individual has “died intestate”. The living family members will want to know who will inherit the assets and how the estate will be distributed.

Intestate Succession


Here’s how the assets are divided when a loved one dies without a will.

In intestate succession, state law allows for certain classes of family members to inherit the decedent’s estate. Each state has its own set of laws for intestate succession, which offers an organized and systematic way to distribute property.

The class of heirs delineates who will receive what portion of the decedent’s estate. For example, in the case where a decedent leaves behind a spouse and four children, the estate will be divvied up, with half of the estate going to the spouse and the other half distributed to the children. If the decedent had no spouse but children only, the estate goes directly to the children. If the decedent leaves behind no spouse and no children, more distant relatives receive the share.

Five classes of heirs exist when evaluating an intestate case:

  • Parents
  • The surviving spouse of the decedent
  • Descendants, including children and grandchildren
  • Siblings, nieces, nephews, and other descendants of the decedent’s parents
  • Aunts and uncles (the descendants of grandparents)

When none of the above survive at the time of the intestate succession, then the estate escheats to the state or county. Such situations where the state receives the entire estate rarely occur, as state laws are designed to ensure that even the most remote relatives receive the inheritance. Unmarried partners, friends and charitable organizations do not receive a decedent’s assets under intestate succession laws.

It is important to note that certain properties cannot by law be passed by a will. These assets include the following:

  • Property in a living trust
  • Assets in a 401(k), IRA, or retirement plan with a named beneficiary
  • Stocks, real estate, or vehicles held in a transfer on death (TOD) account or deed/title
  • Proceeds from life insurance policies
  • Assets held in joint tenancy, including bank accounts and real estate

These types of property may only be passed on with documentation that establishes co-ownership or a beneficiary.

Those Who Will Not Receive Assets

All states have established laws that prevent a relative who behaved badly toward the deceased individual from inheriting any assets. For example, a kindred who committed a crime against the person who died, causing the individual’s death, will almost never receive anything from the decedent’s estate. Parents who failed to pay child support, committed crimes against the child, or abandoned the child do not profit from the deceased child’s assets.


Children can have varying descriptors in the eyes of the courts. Foster children, for instance, do not typically inherit an estate from foster parents. Stepchildren who are not legally adopted by the deceased usually do not receive a portion of the inheritance. Legally adopted children have the right, according to state laws, to receive the estate just as would biological children.

However, intestate succession laws do not give children adopted by an unrelated family the legal right to inherit the property of the biological parents nor the right for biological parents to inherit from the deceased child. In adoption cases where inheritance is in question, the state laws cut the legal tie between birth parents and their children.


State laws give careful consideration about who qualifies as a spouse. Normally, a spouse is one who is legally married to the decedent at the time of death. Questions may arise as to the legal status of marriage, such as in the following scenarios:

  • Pending divorces and legal separation blur the line between who qualifies as a spouse and who does not in the eyes of the law. If divorce proceedings are begun before an individual dies or if the couple is separated prior to one spouse dying, a judge will consider whether or not the surviving member is deemed a spouse.
  • Differing states may or may not recognize common-law marriages. Some states do allow common-law marriages, in which a couple intends to get married, cohabits and presents themselves as would a married couple.

Other Relatives

Illinois has certain additional laws that affect intestate succession. “Half” relatives, such as a half-brother or half-sister, are entitled to a deceased parent’s inheritance just as would “whole” relatives. Relatives who are not citizens of the United States are entitled to an inheritance under Illinois intestate succession laws.

Those who abuse, neglect, or exploit an elderly individual will not receive any portion of that person’s estate upon his or her death. Illinois laws also stipulate a survivorship time period of 120 hours. This means that in order to inherit, the individual must outlive the decedent by at least 120 hours. If two siblings are involved in a car accident, for example, and one sibling dies a few hours after the other, the survivorship law does not allow for the inheritance of property.

Estate Planning Attorneys

When you are in doubt about a family member’s transference of property when no will is found, consult the most trusted estate planning lawyers in Oak Lawn IL, Berry K. Tucker & Associates, Ltd. Our lawyers are experienced in helping clients develop wills and trusts. Our estate attorneys not only assist you with creating and modifying a will but also with contesting wills.

The Berry K. Tucker & Associates Ltd. team of lawyers also specializes in trusts as a part of estate planning. Clients will want to provide for the future of their family with the development of a trust. Examples of trusts on which we focus include charitable trusts, dynasty trusts, life insurance trusts, family trusts, living trusts, and special needs trusts, among others.

Plan for your family’s future by consulting the skilled will and trust attorneys at Berry K. Tucker & Associates, Ltd. Our lawyers are available for an immediate consultation at (708) 425-9530.

How to Choose an Estate Planning Attorney in Illinois

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A skilled estate planning attorney manages your assets and affairs in preparation for your eventual demise or incapacitation. Estate lawyers have numerous invaluable functions. Given these professionals have detailed knowledge about your assets, goals, and family needs, choosing a suitable estate planning attorney is crucial to your present peace of mind and your loved ones’ future.

The Power of Estate Planning AttorneysLast-Will-and-Testament-Form-with-Gavel

Estate planning attorneys wear multiple hats. Your last will and testament are likely drafted by an estate planning attorney. Such a lawyer also creates living trusts. While looking toward the future, your estate planning lawyer will work to prevent creditors from pursuing your beneficiaries after your death. They can also help you avoid estate taxes.

An estate planning attorney can help you in several ways:

  • Protecting your assets: Estate planning attorneys can help you protect your assets from creditors, taxes, and other potential threats.
  • Ensuring your wishes are carried out: An estate planning attorney can help you create a plan that ensures your wishes are carried out after your death. This includes creating a will or trust, naming beneficiaries, and outlining your final wishes.
  • Minimizing taxes: Estate planning attorneys can help you minimize taxes on your estate and avoid probate, which can be time-consuming and expensive.
  • Planning for incapacity: Estate planning attorneys can help you plan for incapacity by creating a power of attorney and a healthcare directive, which appoints someone to make decisions for you if you become incapacitated.

Aside from managing financial matters, an estate planning attorney has the power to prepare health care directives. In the event mental incapacitation gets a stronghold in your life, this legal professional will arrange to have your affairs kept in good order. Estate planning attorneys can help you create a comprehensive plan that protects your assets, ensures your wishes are carried out, and provides peace of mind for you and your loved ones.

A lawyer who specializes in estate planning should be your top choice. General legal practitioners are unlikely to offer niche services to guide you through your unique financial matters.

Requirements for Estate Planning Attorneys

Your ideal choice should also stay abreast of the current laws of the state in which you reside. In the unfortunate event, you pick an estate planning attorney who fails to keep up with changing state laws, your estate plan could be deemed null in court.

If you feel comfortable sharing the particulars of your life, assets, death, and possible future disability with a potential estate planning attorney, you may have struck gold. A compatible lawyer listens to your concerns with the precise intent to develop an estate plan that fully satisfies your expectations.

Finding a remarkable professional to carry out your estate plan takes a little digging. You’ll find the most success by asking for referrals. Professionals you already trust, people like your financial advisor, your accountant, and your attorney, can lead you to a fitting estate planning attorney.

While referrals are an excellent starting point, you can also achieve your goal by scouring legal ads. Print, television, and radio are inundated with ads from lawyers. It helps to know that states regulate attorney ads to deter lawyers from guaranteeing unattainable outcomes.

Your local bar association or state bar offers a list of certified attorneys who specialize in estate planning. You may stumble upon a certified referral service from a city or county bar association.

Once you’ve narrowed down your choices, perhaps based on specialization or location, prepare to take advantage of the lawyers’ consultations. During the initial meeting, ask questions. The attorneys’ answers will direct you to a qualified and well-suited professional.

What to Look for in an Estate Planning Attorney

1. Experience

Any attorney can legally claim the title of an estate planner, even if he has no direct experience with the specialty. A simple estate plan can be carried out by an estate planning attorney with just two to three years of experience. Complex estate plans should be handled by an experienced lawyer, one with seven to ten years of handling trust law, probate as well as estate planning.

2. Full Time

Ask your potential estate planning attorney how much time he allocates to estate planning. The ideal response is “full time”. Effectively navigating the sophisticated field of estate planning requires specialized expertise and dedication.

3. Accredited Estate Planner

The National Association of Estate Planners & Councils awards the AEP. Professionals who receive this designation are licensed attorneys who are active in estate planning, have five years (minimum) of direct experience working in estate planning, and have at least 15 hours of continuing education in estate planning within the past 24 months.

4. Payment

While seeking the cheapest lawyer is tempting, it is imperative to avoid the most inexpensive estate planning attorneys for two reasons:

  • Low-cost estate planning lawyers tend to utilize standard documentation, thereby failing to take into account your unique needs
  • Lawyers who charge less may offer the least experience; and, when your assets are complex, an experienced lawyer is more likely to provide you and your loved ones with the desired services.

5. Communication

An attorney’s seamless communication and explanations regarding the multifaceted aspects of estate planning are major pluses when you are on the hunt for a qualified estate planning professional. As a client, it is crucial that you comprehend the documents you sign.

6. Advisor or Salesman?

An estate planning attorney’s job is to advise you on important matters regarding your estate, rather than sell services or tools. An appropriate setup occurs when you have trust in the advice of your estate planning lawyer, enough to reveal your goals and familial concerns.

Work with Experienced Estate Planning Attorneys in Chicago

The well-being of your family is important. When you are planning to seamlessly disperse your assets among your loved ones, a qualified estate planning lawyer is critical. The attorneys at Berry K. Tucker & Associates, Ltd. offer over 30 years of experience in estate planning.

About Berry K. Tucker & Associates, Ltd.Berry-K.-Tucker-Personal-Injury-Lawyer-Oak-Lawn-IL

Berry K. Tucker & Associates, Ltd. estate planning attorneys will take steps to fully understand your unique financial situation. Estate planning documents are then drafted and executed to meet your and your family’s needs. Our lawyers stay up to date on all current Illinois laws, so expect peace of mind in knowing your estate plan will be accepted in court.

Included in the comprehensive estate planning services provided by Berry K. Tucker & Associates, Ltd. are will and trust creations. When it comes to trusts, our reputable team of lawyers offers experience with life insurance trusts, charitable trusts, and living trusts, among many others.

Berry K. Tucker & Associates, Ltd. serves the Oak Lawn, Illinois, community with dedication. We are committed to offering top-notch estate planning services to clients in the surrounding areas.

Schedule a Consultation for Estate Planning

Give us a call at (708) 425-9530 or fill out a contact form to schedule your consultation with an experienced estate planning attorney.

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