What happens when someone dies with no will?

02/06/2009 - Category:Wills and Estates - Probate - State: IL #15168

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?

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.


Please see the information at the following links:

http://lawdigest.uslegal.com/estate-planning/probate-and-executors/
http://lawdigest.uslegal.com/estate-planning/intestacy/
http://definitions.uslegal.com/i/intestate/
http://definitions.uslegal.com/e/executors-and-administrators/

Please see the forms at the following links:

http://www.uslegalforms.com/us/US-0693LTR.htm
http://www.uslegalforms.com/us/US-0380LTR.htm
http://www.uslegalforms.com/il/IL-SDEED-6.htm
http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-IL-B-adminis

02/06/2009 - Category: Probate - State: IL #15168

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