Intentional Estate Planning: What Happens When You Do Nothing

Here’s the stark truth.

If you do not make a formal estate plan, state law will make one for you.

That process is rarely fast, lacks privacy, and leaves families navigating an unfamiliar system.

When someone dies without a will (called dying intestate), decisions still get made. The difference is that those decisions come from statute and court proceedings, not from the direction you would have given, including which assets are involved and how those assets are transferred. That often includes probate, a court-supervised process many families encounter for the first time at a difficult moment.

What follows uses Illinois as an example. Every state has its own rules, so this is not a comprehensive explanation of the law. The goal is to show what families experience when you have no formal plan.

Who Illinois law recognizes as an heir

Let’s define some terms. Illinois probate law begins by defining who qualifies as family for inheritance purposes.

A spouse means a legally married spouse. That is to say that Illinois does not recognize common-law marriage.

Descendants include children, grandchildren, and further lineal descendants. Adopted children are treated the same as biological children, but stepchildren are not, unless they were legally adopted.

These definitions matter because people who feel like family do not always count under the law. And the reverse is true too. People you may not have intended to benefit sometimes do.

How Illinois distributes assets when there is no will

Once heirs are identified, the statute applies a fixed distribution scheme. Here are some examples based on different situations.

Spouse only, no descendants

If you are survived by your spouse and have no descendants, your spouse receives the entire probate estate. Very straightforward.

Descendants only, no spouse

If you are survived by descendants and weren’t currently married or your spouse predeceased you, your estate passes to your descendants under a system called per stirpes. This means each branch of the family receives an equal share. If a child died before you, that child’s share passes to their children. Simple in theory. Often complicated in real families.

Spouse and descendants

If you are survived by both your spouse and descendants, the estate is split evenly: fifty percent goes to your spouse and fifty percent to your descendants, divided per stirpes.

For example, if you leave your spouse and two children behind, your spouse receives fifty percent. Each child receives twenty-five percent. If one of your children had already passed, their share would go to their children.

If you are already thinking about whether equal is fair in your family, I explored those questions in more detail here.

No spouse and no descendants

If there is no spouse or descendants, Illinois law continues down a fixed order: Parents come first, followed by siblings, then grandparents, then more distant relatives. And guess who gets it as a last resort? The State! 😱

This process does not consider personal relationships or family dynamics. It applies default rules, plain and simple.

I hope this illustrates how you lose control of the distribution of your assets without a formal plan.

Which assets are controlled by intestacy rules

Intestacy rules apply only to probate property. Some assets transfer automatically by contract or title and are not controlled by intestacy law, including:

• Joint accounts with rights of survivorship (JTWROS)

• Payable on death (POD) and transfer on death accounts (TOD)

• Life insurance and retirement accounts with named beneficiaries

• Assets held in a trust

Everything else passes according to state rules if there is no will. This commonly includes:

• Individually owned bank accounts

• Vehicles

• Personal property

• Real estate titled solely in your name

If there is no will, beneficiary designation, or trust, the state statutes control what happens.

What intestate probate looks like

So what does the court-supervised probate actually look like?

In practice, it’s a series of required steps that happen in a set order. None of them are especially complicated on their own, but together they take time, often more time than you expect.

1. Determining whether probate is required
If probate assets exceed $100k, probate is required. If under that amount, a Small Estate Affidavit can be filed, which can be a fast lane directly to the end if real estate isn’t involved.

2. Opening the estate in court
If probate is required, a case must be opened in the Illinois circuit court where you lived. Someone has to file the initial paperwork. Who will that be if you haven’t identified them ahead of time through a will? Until this happens, accounts generally remain frozen, and nothing moves forward.

3. Appointment of an administrator
Because there is no will, the court appoints an administrator. Illinois law sets the order of priority, starting with the surviving spouse, then adult children, then other heirs. Once appointed, the administrator has legal authority to act in the best interests of the estate and heirs. Total responsibility for finishing out the process is on their shoulders.

If you want to understand how to choose the right person and why this decision causes so much hesitation, I wrote more about that here.

4. Notice to heirs and creditors
Heirs must receive formal notice of the probate case. Creditors must also be notified and are given time, often six months, to submit claims. Distributions wait until the full picture is known.

5. Collecting and safeguarding assets
The administrator gathers and secures estate assets. Any property, including a home, must continue to be maintained. Assets are collected and held but are not yet distributed.

6. Filing an inventory
The administrator files an inventory listing probate assets and their values with the court. This step often prompts questions, especially if assets were overlooked or values are disputed.

7. Paying debts, expenses, and taxes
Before anyone inherits, the estate pays funeral expenses, administration costs, taxes, and valid creditor claims. If there are disagreements that can’t be resolved mano a mano, they are resolved through court proceedings.

8. Accounting for the estate
Throughout the process, the administrator maintains records of what is received, what is sent out, and what remains. That accounting is ultimately provided to the court and the heirs.

9. Distributing assets
Only after all this can assets be distributed, and in some cases, court approval is required first.

10. Closing the estate
The process ends with final filings. The court reviews them, requests corrections if necessary, and then approves the closure of the estate.

Clearly, probate takes time - six to twelve months is common, and it can be longer if the process becomes more complex and contentious. For families who are already grieving, probate can feel like it drags on forever.

Why relying on state law is rarely ideal

When there is no estate plan, your family does not receive your guidance. Going through this process is especially hard in the case of family disputes. Your spouse might not have enough to live out their life if they only get half.

That raises immediate questions. What happens to the house if you were the only one on the deed? (I’ve seen this in real life) Who decides whether it is sold? How is the value divided if 50% is supposed to go to your spouse and 50% to your kids?

This is just one example of what could happen when those you care about the most don’t have a clear understanding of your wishes.

How this changes when you have an estate plan

When valid estate planning documents are in place, the experience is fundamentally different.

• Responsibility is clear because executors and trustees are named in advance.

• Assets pass according to written instructions, not a statute, so court involvement is limited or eliminated. Privacy is preserved.

• The risk of conflict is reduced because who gets what is already defined.

• Administration could be completed in weeks or a few months, which means costs are lower and your heirs receive their inheritance more quickly.

How we help clients plan intentionally

So many people get tripped up with formal estate planning, and my hope is that laying out the alternative first gives you the motivation you need to get your estate planning work started or bring it to the finish line.

Our role is practical and collaborative. In it we:

• Educate you about the options, define terms that are often unclear, and explain how the estate planning process works in real life.

• Connect you with experienced estate planning attorneys to draft and execute the legal documents. We participate as much or as little as you want.

• Help you follow through by assisting with asset titling and beneficiary changes, especially for the accounts we manage.

Intentional estate planning replaces default rules with clear direction. It allows you to decide now, rather than leaving those decisions to a system your family must navigate without you. Estate planning is one of the most loving gifts you can give your family.