Dying With vs. Without a Will in Illinois: How the Probate Process Differs

One of the biggest concerns when a loved one passes away is how their estate will be handled, especially if there is no will in place. In Illinois, the probate process varies significantly depending on whether the deceased had a valid will (testate) or died without one (intestate). While both situations often require probate, the process is generally simpler, faster, and less expensive with a will.

Let’s take a closer look at the differences.

Dying With a Will (Testate): A More Streamlined Probate Process

If someone dies with a valid will in Illinois, their estate goes through probate in a more structured and efficient manner. Here’s how it works:

1. Executor is Named: The will designates an executor (sometimes called a personal representative) who is responsible for administering the estate. This avoids the need for the court to appoint someone.

2. Independent Administration: In most cases, the court allows for independent administration, meaning the executor can handle most tasks without constant court supervision. This significantly reduces costs and delays.

3. Distribution According to the Will: The executor follows the instructions in the will to distribute assets to beneficiaries.

4. Fewer Disputes: Because the deceased’s wishes are clear, there is less room for legal disputes among heirs.

While probate is still required in many cases, having a will makes the process quicker, less expensive, and less stressful for family members.

Dying Without a Will (Intestate): A More Costly and Complicated Process

When someone dies without a will, their estate must go through the intestate probate process, which is typically longer and more expensive.

Here’s why:

1. Administrator Must Be Appointed: Since there is no named executor, the court must appoint an administrator to handle the estate. This can lead to disputes among family members over who should serve.

2. Supervised Administration May Be Required: Without a will, the court is more likely to require supervised administration, meaning every major action (paying debts, selling assets, distributing property) requires court approval. This adds time, legal fees, and administrative costs.

3. Assets Are Distributed According to Illinois Law: Instead of following the deceased’s wishes, the estate is distributed based on Illinois’ intestacy laws, which prioritize spouses and biological children first, then extended family.

4. More Potential for Family Conflict: Without clear instructions from a will, disagreements over asset distribution are more common, leading to legal disputes that increase costs.

Why Is Dying Without a Will More Expensive?

• Higher court costs due to additional oversight.

• More attorney fees because the process takes longer and often involves disputes.

• Potential bond requirements for the administrator, adding extra financial burdens.

• Delays in accessing assets, causing financial hardship for family members.

Key Takeaways: Why Having a Will Matters

With a Will: The probate process is typically quicker, easier, and less expensive because an executor is named, and the court allows independent administration.

Without a Will: The process is slower, more costly, and subject to court supervision, with assets distributed based on Illinois law rather than the deceased’s wishes.

Protect Your Family and Create an Estate Plan Today

If you want to save your family time, stress, and money, creating a will is one of the most important steps you can take. At Illinois Estate Law, we make the process simple and affordable with flat-fee estate planning packages tailored to your needs. Schedule a consultation today to get started.