PLEASE NOTE THAT THIS ARTICLE APPLIES ONLY TO ILLINOIS PROBATE LAWS.
Whether you have a will or not, your estate – what you own at the time of your death – will be distributed via a court proceeding. The difference is that when you have a will, you decide who gets your property; without a will it is decided for you.
A will can name who will get your personal possessions, real estate, cash, etc. After your death, your will is filed with the court. This begins the process of probate, which is just another name for distribution and settlement of your estate.
A will is not a guarantee that there will not be a dispute about who gets what. There can be a defect in your will that you didn't realize. Or it can be contested by a family member. Both of these situations will make the probate process long and perhaps contentious. While you cannot control what people do after your death, an experienced lawyer can help you devise a solid plan and an airtight document to minimize confusion when it's interpreted later.
In addition to distributing property, a will also names an executor of your estate. This is a person who will be in charge of the process of administering your estate, along with a lawyer. They will work together to make sure everything gets settled.
A will also can name a guardian for your children, and set up a trust where the assets from your estate can go after probate. A trust can hold money for your children, for example, until they are of a certain age. A will also can dictate how estate taxes and debts are to be paid.
If you do not have a will, your property still will be distributed. But instead of following your wishes, the court will follow a generic distribution method set by Illinois law. While this method may match your wishes, it may not, which is why a will is considered such an important document.
Without a will, the court will give your assets to your family members, starting with those considered closest to you. The first step is to give your spouse half, and your children the other half. If you have no children, your spouse will get everything. If you have no spouse, your children will get everything. If you have no spouse and no children, your estate will be divided among your parents and / or siblings. The list goes on to include more removed family members if need be.
Your will can be modified any time during your life, so long as you are considered mentally competent to do so.
For more information on Illinois probate laws see http://www.findgreatlawyers.com/2Probate.htm .