What happens when someone dies with no will?

Full question:

If there is not a living will, 3 children and a home left, what should we do? There is a second mortgage for $18,000. However, the house is worth $150,000 or more and no beneficiary chosen. Mother, who held the mortgage, is deceased. The heirs are three living children, 2 children have same mother and father ( Ages 49 and 43) 1 child has same birth mother (Age 59). Do we go to Probate court or what must do?

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Illinois

Answer:

When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state. If a person is a sole owner, the fiduciary deed may transfer all the interest in the property to one or more heirs entitled to inherit under intestacy laws.

The following are IL statutes:

755 ILCS 5/2-1 (from Ch. 110 1/2, par. 2-1)

Sec. 2-1. Rules of descent and distribution. The
intestate real and personal estate of a resident decedent
and the intestate real estate in this State of a
nonresident decedent, after all just claims against his
estate are fully paid, descends and shall be distributed
as follows:

(a) If there is a surviving spouse and also a descendant
of the decedent: 1/2 of the entire estate to the
surviving spouse and 1/2 to the decedent's descendants
per stirpes.

(b) If there is no surviving spouse but a descendant of
the decedent: the entire estate to the decedent's
descendants per stirpes.

(c) If there is a surviving spouse but no descendant of
the decedent: the entire estate to the surviving spouse.

(d) If there is no surviving spouse or descendant but a
parent, brother, sister or descendant of a brother or
sister of the decedent: the entire estate to the parents,
brothers and sisters of the decedent in equal parts,
allowing to the surviving parent if one is dead a double
portion and to the descendants of a deceased brother or
sister per stirpes the portion which the deceased brother
or sister would have taken if living.

(e) If there is no surviving spouse, descendant, parent,
brother, sister or descendant of a brother or sister of
the decedent but a grandparent or descendant of a
grandparent of the decedent: (1) 1/2 of the entire estate
to the decedent's maternal grandparents in equal parts or
to the survivor of them, or if there is none surviving,
to their descendants per stirpes, and (2) 1/2 of the
entire estate to the decedent's paternal grandparents in
equal parts or to the survivor of them, or if there is
none surviving, to their descendants per stirpes. If
there is no surviving paternal grandparent or descendant
of a paternal grandparent, but a maternal grandparent or
descendant of a maternal grandparent of the decedent: the
entire estate to the decedent's maternal grandparents in
equal parts or to the survivor of them, or if there is
none surviving, to their descendants per stirpes. If
there is no surviving maternal grandparent or descendant
of a maternal grandparent, but a paternal grandparent or
descendant of a paternal grandparent of the decedent: the
entire estate to the decedent's paternal grandparents in
equal parts or to the survivor of them, or if there is
none surviving, to their descendants per stirpes.

(f) If there is no surviving spouse, descendant, parent,
brother, sister, descendant of a brother or sister or
grandparent or descendant of a grandparent of the
decedent:

(1) 1/2 of the entire estate to the decedent's
maternal great-grandparents in equal parts or to the
survivor of them, or if there is none surviving, to their
descendants per stirpes, and

(2) 1/2 of the entire estate
to the decedent's paternal great-grandparents in equal
parts or to the survivor of them, or if there is none
surviving, to their descendants per stirpes.

If there is
no surviving paternal great-grandparent or descendant of
a paternal great-grandparent, but a maternal
great-grandparent or descendant of a maternal
great-grandparent of the decedent: the entire estate to
the decedent's maternal great-grandparents in equal parts
or to the survivor of them, or if there is none
surviving, to their descendants per stirpes. If there is
no surviving maternal great-grandparent or descendant of
a maternal great-grandparent, but a paternal
great-grandparent or descendant of a paternal
great-grandparent of the decedent: the entire estate to
the decedent's paternal great-grandparents in equal parts
or to the survivor of them, or if there is none
surviving, to their descendants per stirpes.

(g) If there is no surviving spouse, descendant, parent,
brother, sister, descendant of a brother or sister,
grandparent, descendant of a grandparent, great-grandparent
or descendant of a great-grandparent of the decedent: the
entire estate in equal parts to the nearest kindred of the
decedent in equal degree (computing by the rules of the
civil law) and without representation.

(h) If there is no surviving spouse and no known kindred
of the decedent: the real estate escheats to the county
in which it is located; the personal estate physically
located within this State and the personal estate
physically located or held outside this State which is
the subject of ancillary administration of an estate
being administered within this State escheats to the
county of which the decedent was a resident, or, if the
decedent was not a resident of this State, to the county
in which it is located; all other personal property of
the decedent of every class and character, wherever
situate, or the proceeds thereof, shall escheat to this
State and be delivered to the State Treasurer pursuant to
the Uniform Disposition of Unclaimed Property Act.

In no case is there any distinction between the kindred
of the whole and the half blood.