Detailed answer — how succession among children works when there is no will (Illinois)

This section explains, in plain language, how a deceased person’s estate is distributed among their children when they die without a valid will (intestate) under Illinois law. This is a general explanation only — check the cited statutes and speak with a probate attorney or the local probate court for case-specific guidance.

Primary rule: children inherit by representation (per stirpes)

Under the Illinois Probate Act (Probate Act of 1975, 755 ILCS 5), a decedent’s surviving descendants (children, grandchildren, etc.) take by representation. In practice this means:

• If the decedent is survived by one or more children who are living, those living children take the decedent’s share that belongs to the child’s branch of the family.
• If a child of the decedent died before the decedent but left children (the decedent’s grandchildren), those grandchildren step into their deceased parent’s place and share that parent’s portion equally. This is commonly referred to as per stirpes distribution.

Example (simple): A parent dies leaving three children A, B and C, all alive. Each child receives one third. If child B died before the parent but left two children (grandchildren G1 and G2), then A receives one third, C receives one third, and G1 and G2 together receive the one third that would have gone to B (so each grandchild gets one sixth).

Adopted children, children born out of wedlock, and legally established heirs

Illinois treats legally adopted children as descendants for intestate succession. Children born out of wedlock are heirs if parentage has been legally established (for example, by court order, marriage that legitimizes the child, or other statutory methods). Stepchildren who were never legally adopted generally do not inherit as children unless adoption or another legal relationship was established.

When there is also a surviving spouse

When a decedent is survived by a spouse and children, Illinois law provides rules that determine how the estate is split between the spouse and the decedent’s descendants. The exact division depends on whether the spouse is also the parent of all the decedent’s surviving children and on other family circumstances. Because spouse-vs.-children splits can be fact-specific, consult an attorney or the Probate Court rules for the precise allocation. See the Illinois Probate Act for statutory divisions: 755 ILCS 5 (Probate Act of 1975).

What if there are no surviving children or descendants?

If the decedent has no surviving descendants (no children, grandchildren, etc.), Illinois intestacy rules move to the next classes of relatives in a statutory order: parents, siblings, nieces and nephews, and so on, ultimately to the State if no relatives can be found. See the Probate Act for the full order of priority.

Administration and practical effect

When children (and possibly grandchildren by representation) are the decedent’s heirs, the probate estate is administered to locate assets, pay debts and taxes, and then distribute the remaining property according to the statutory shares. The person who opens probate (the petitioner) asks the court for appointment as personal representative (also called executor or administrator). Once appointed, the representative carries out the distribution to heirs according to statutory rules and court orders.

Key statutory reference

Illinois’s intestacy and representation rules are set out in the Probate Act of 1975 (755 ILCS 5). For the text of the Act and the intestacy provisions, see the Illinois General Assembly website: 755 ILCS 5 — Probate Act of 1975 (Illinois General Assembly). For specific questions about representation and distribution among descendants, review Article II of that Act and consult the probate clerk or an attorney.

Helpful hints

• Per stirpes vs. per capita: Illinois uses representation (per stirpes) so an entire branch gets the share of a predeceased child and that share is divided among that child’s descendants.
• Confirm legal parentage: inheritance rights depend on legally established parent-child relationships (birth records, adoption records, paternity orders, etc.).
• Check for a surviving spouse: If a spouse survives the decedent, the estate division can change. Don’t assume children receive the entire estate without verifying the spouse’s rights under the Probate Act.
• Gather documents early: birth certificates, adoption decrees, marriage certificates, and any documents showing paternity will help prove heirship during probate.
• Contact the county probate clerk: the clerk can explain local filing procedures and forms needed to open probate and to identify heirs.
• Consider simplified procedures: small estate or summary procedures may be available in some cases; ask the probate clerk whether your situation qualifies.
• Disputes and contested paternity or adoption matters often require court hearings — consider legal counsel if relatives dispute who is an heir.
• Act promptly: creditors’ claims and statutory deadlines can affect estate administration and heirs’ shares.