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What will happen if I die without a will?

  • Published
  • By 1st Lt Trevor Johnson
  • Assistant Staff Judge Advocate
SCOTT AIR FORCE BASE, Ill. --  

A Last Will and Testament is a legal document that controls how your property and personal affairs are handled after your death. A will gives your family and the state directions on issues, including who should receive your house, take care of your children, and receive your personal property.

While it is advisable for every military member and spouse to have a will and keep it up to date, the consequences of dying without a will are not as negative as you might think.

Dying without a will is known as dying intestate. States have detailed intestacy laws that specifically address how real estate, financial assets, and personal property are distributed if you die without a will. It is a common misconception that if you die without a will, the state will automatically take your property. However, in most situations Illinois law will automatically transfer your estate to your family members if you die intestate.

Under the Illinois Probate Act of 1975 (755 ILCS 5/2-1), if you die without a will, your property will go to your spouse and children. If you don’t have any children then your property will go to your spouse. If you don’t have a spouse, your property will go to your children.

If you don’t have a spouse or children, your property will go to your parents or siblings. Overall, Illinois law works to ensure that your property is distributed equitably to your nearest surviving family members, even if those family members are very far removed. Only if you have no surviving spouse or any family members will your property go to the state or the county after your death.

On the contrary, while Illinois law provides an effective and commonsense system for distributing property absent a will, the legal formulas that work well for transferring property do not account for the personal considerations of deciding who should raise your children.

While the state will do its best to arrange for the care of your children, without a will that appoints a guardian for your children, the state may designate someone whom you would not have chosen.

Appointing a guardian for minor children in your will enables you to consider the guardian’s age, religion, location, resources, and prior relationship with your children, and to discuss the matter with the person you choose.

Ultimately, if you are comfortable with Illinois laws and do not have substantial assets or minor children, you may decide you do not need a will. In that case, not having a will may not be as much of a concern.

However, if you have minor children, a complicated estate, or want to transfer certain property very specifically, having a will is a must. To discuss your particular situation, get your questions answered, or set up an appointment to make a will, contact the base legal office by stopping by the front desk or calling 256-3542.

This article is intended to provide general information only and not legal advice. If you need legal advice regarding your specific situation, contact the legal office.