Inspired by our recent Lunch & Learn session on What Happens When There’s No Will? Testate vs. Intestate Probate Explained (August 14, 2025). Watch the full video on YouTube: https://youtu.be/D12xmsnSAaE. You can also find the session recap on our blog: https://www.greenwood.law/~/blog/2025/august/protecting-your-legacy-one-lunch-break-at-a-time/
Testate vs. Intestate—plain English
**Testate** means the decedent left a valid **Last Will and Testament**. The will names who’s in charge (executor) and who inherits (legatees), and it can add powerful administrative tools that keep the court out of routine decisions.
**Intestate** means **no will** (or the will isn’t valid). Illinois’ default plan—called **intestacy**—kicks in and determines both who’s in charge (administrator) and who inherits.
In our client conversations, the single biggest surprise under intestacy is this: **if you leave a spouse *and* children, your spouse inherits half and your descendants share the other half.** That’s the statute—not the “everything to my spouse, then the kids” plan most couples assume.
What actually *triggers* probate in Illinois?
Probate is required to transfer assets that **(1)** were titled only in the decedent’s name and total **more than $100,000**, or **(2)** include **any Illinois real estate** that isn’t otherwise set to pass by title or beneficiary.
**Small Estate Affidavit:** If the **probate‑assets total ≤ $100,000 and there’s no real estate**, Illinois allows transfers via a Small Estate Affidavit—often avoiding a court case entirely.
Who’s in charge—executor vs. administrator (and why a bond matters)
With a **will**, you nominate an **executor** and—importantly—many well‑drafted wills **waive the surety bond**.
Without a will, an **administrator** is appointed by priority, and **a bond is commonly required** unless the court waives it or a corporate fiduciary is appointed.
Who inherits when there’s *no* will (intestacy highlights)
Illinois intestacy rules are rigid. Here are the practical takeaways:
- **Spouse + descendants:** 50% to the surviving spouse and 50% split among descendants **per stirpes**.
- **Spouse only:** Spouse takes **100%**.
- **Descendants only:** Descendants take **100%**, per stirpes.
- **Unmarried partners:** **No share** under intestacy.
- **Stepchildren (not adopted):** **No share** under intestacy.
Why the *quality* and *custody* of the will matters
Generic online forms or out‑of‑state templates often fail Illinois execution requirements.
Whoever holds a will must **file it with the clerk in the proper county**. Withholding a will **30+ days after learning of the death** can carry criminal penalties.
Opening the estate: the core paperwork
A typical Illinois opening package includes:
- **Petition**
- **Affidavit of Heirship**
- **Oath and Bond**
Selling the house (and why a will helps)
A well‑drafted will typically includes an **express power to sell real estate**.
In an intestate estate, you often **must** seek a court order to sell.
Independent vs. supervised administration
Most estates in Illinois proceed under **Independent Administration**.
If there’s no will, or a party requests it, the court can require **Supervised Administration**.
Special scenarios we see often
- **Blended/non‑traditional families**
- **Loved one with a disability**
- **High‑risk professions or expected disputes**
Quick actions you can take today
- **Sign an Illinois‑compliant will**
- **Name beneficiaries**
- **Use TODI or a revocable trust**
- **Tell someone where your originals are**
- **Review after life changes**
Want help tailoring the right plan?
We help families across Illinois and Iowa design plans that actually work—during life, at incapacity, and after death.
Call us at (855) 528‑6022 or reach out at https://www.greenwood.law/
Disclaimer
This post is for general information and is not legal advice. Probate procedures and timelines can vary by county and facts. If you have a specific situation, consult an attorney.