Dying Without a Will

By David McCarthy

When someone dies without a will, the State does not take all the property; but the State does draw a will, so to speak. The way the State-drawn will disposes of the property may be at odds with the way the deceased would have done so had he/she made a will.

The state-drawn will in Illinois is known as "Rules of descent and distribution." (755 ILCS 5/2-1). It provides, among other things, that when there is a surviving spouse and descendants (e.g., children), the surviving spouse gets one-half and the descendants one-half.

One would suppose that in most cases when there is a surviving spouse and descendants, a will would give all to the surviving spouse.