Who qualifies as a decedent’s next of kin under Illinois law depends on the persons that survive the testator’s death, and generally include:
- Surviving Spouse
- Children
- Parents
- Siblings
The Illinois Probate Act Sets Forth the Next of Kin of a Deceased Party
The Illinois Probate Act, 755 ILCS 5/2-1, lists degrees of heirship. The statute then directs which relations take a share of a decedent’s estate, based on the next of kin that survived the decedent.
Survivors | Inheriting Next of Kin |
Spouse and children | Spouse gets half of intestate property, children take other half |
Spouse, no children | Spouse |
Children, no spouse | Children |
Parents, no spouse, no descendants, no siblings | Parents |
Siblings, no parents, no descendants, no spouse | Siblings |
Parents and Siblings | parents and siblings inherit in equal shares, except that if only one parent is living, that parent gets a double share |
Why Does Next of Kin Matter?
The main reason that is important to determine a decedent’s next of kin is for purposes of intestate succession. When someone dies without a will, they have died intestate. When someone dies intestate, the Illinois Probate Act determines who qualifies as decedent’s next of kin, and who inherits decedent’s probate estate.
Another circumstance when status of next of kin can come into play is for permission for an independent autopsy, and the right to possession of a decedent’s remains in order to make appropriate disposition thereof.
Status as next of kin can also matter for purposes of having standing to bring a wrongful death action in Illinois.
Do You Automatically Inherit If You Are Next Of Kin In Illinois?
No, you do not automatically inherit from an estate simply because of your status as next of kin under the Illinois Probate Act.
On reason is that even if the decedent died intestate, the decedent may not have had any probate assets. If a decedent dies having only non-probate assets, such as bank accounts with beneficiary designations and jointly-owned real property, then there would be no assets for a next of kin to inherit under Illinois law.
If Decedent died with a valid will, then the will controls the distribution of the decedent’s estate, not status as next of kin under Illinois law. As stated in Heuser v. Harris, an 1867 Illinois Supreme Court case:
No next of kin, no matter how near he may be, can be said to have any equitable right to his kinsman’s estate. The law of the land has placed every person’s estate wholly under the control of the owner, subject to such final disposition of it as he may choose to make by his last will and testament, subject to the statutory rights of his widow, if he leaves one. Ever since the introduction of the practice of making wills it has been universally conceded that the testator may dispose of his property by his own will as he pleases.
