Does a Surviving Spouse Need Probate in Illinois?

The Short Answer

It depends on how the property was owned and transferred at death. Some assets may pass directly to a surviving spouse or another beneficiary through joint ownership, beneficiary designations, a trust, or a transfer-on-death arrangement. Other assets may remain in the deceased spouse’s individual name and may require probate or another Illinois procedure before they can be transferred or managed.

Does Every Estate Need Probate?

No. Probate is one way legal authority is established to administer property after death, but some assets pass outside probate. Whether probate is needed depends on the specific assets and documents involved.

What Assets May Pass Outside Probate?

Depending on the documents and ownership, examples can include jointly owned property with survivorship rights, accounts with valid payable-on-death or transfer-on-death beneficiaries, property held in a trust, and Illinois real estate covered by a valid transfer-on-death instrument. The actual title and beneficiary records control.

What If the Deceased Spouse Owned Property Individually?

Individually owned property with no effective beneficiary arrangement may become part of the probate estate. A court-appointed representative may then be needed to collect, manage, transfer, or sell estate property. In some smaller estates, an Illinois small-estate procedure may be available if all statutory requirements are satisfied.

What If There Is No Will?

Illinois intestacy law governs probate property that is not disposed of by a valid will. As a general rule, if the deceased spouse leaves both a surviving spouse and descendants, the intestate probate estate is divided one-half to the surviving spouse and one-half to the descendants, per stirpes. If there is a surviving spouse and no descendant, the surviving spouse generally receives the intestate estate. These rules do not determine ownership of assets that pass outside probate.

Can a Surviving Spouse Have Other Rights?

Yes. Illinois law provides certain statutory protections for a surviving spouse, and different issues can arise when there is a will. Which rights apply depends on the estate, the will, the family circumstances, and other facts.

Bottom Line

A surviving spouse may or may not need to open probate after a spouse dies. The answer usually requires reviewing the deed, account ownership, beneficiary designations, trust, will, debts, and other estate documents. A qualified Illinois attorney can review those materials and explain which procedure applies.