Can I bring a wrongful death claim if my loved one died without a will?

Catastrophic Injury/Wrongful Death - May 15, 2023

When someone passes away due to someone else’s negligence, their surviving loved ones may be entitled to compensation through an Illinois wrongful death claim. This is true even if the person deceased without a will in place — while the absence of a will can complicate matters, it does not automatically invalidate the claim.

Continue reading to learn more, then contact Horwitz, Horwitz & Associates to speak with an attorney about your legal options.

Role of a will in filing wrongful death claims

A will is a legal document that outlines a person’s wishes regarding the distribution of their assets upon death. In this document, a person may select an executor, or personal representative, to handle the distribution of their property. They may also name beneficiaries who will receive these assets.

Under the Illinois Wrongful Death Act, all wrongful death claims must be filed by the personal representative of the deceased’s estate. When the deceased has a will, determining who this will be is simple — the executor named in the document will be responsible for filing the claim.

If there is no will, the court will appoint a representative, such as a close relative like the deceased’s surviving spouse, child, or parent. The ability of the court to appoint a personal representative is the reason why a will isn’t necessary to file a wrongful death claim.

Will vs. no will in the distribution of damages

The goal of a traditional wrongful death claim is to recover compensation for the losses or damages suffered by the deceased person’s surviving family members due to the death. Potential damages in a wrongful death claim include funeral and burial costs, loss of companionship, financial support, and grief and mental suffering.

When a personal representative files a wrongful death claim, they are doing so on behalf of the deceased’s surviving loved ones, who will then receive any compensation obtained. This is where the presence or absence of a will can make a major difference.

If the deceased died with a valid will, the surviving spouse and the beneficiaries named in the document will be eligible to receive a portion of the damages recovered. The beneficiaries may be anyone chosen by the deceased, including non-relatives or distant relatives. If the deceased did not have a will, the distribution of damages would follow the rules of intestate succession under the Illinois Probate Act.

Intestate succession in Illinois wrongful death claims

Intestate succession establishes an order of priority for the distribution of assets and damages when your loved one deceased without a will. Generally, the deceased’s spouse and descendants, including children and grandchildren, have priority.

If the deceased has a surviving spouse, but no descendants, all of the damages will go to the surviving spouse. If the deceased has a spouse and descendants, the damages will be split between them and the surviving spouse. Likewise, if the deceased has descendants but no surviving spouse, the damages will be divided between the descendants.

If there is no surviving spouse or descendants, the deceased’s parents and siblings may receive the damages. The descendants of the deceased’s siblings (the deceased person’s nieces or nephews) may also be eligible for compensation in some cases. And if none of these people survive, the damages may go to more distant relatives, such as grandparents, aunts, uncles, or cousins.

Our Chicago wrongful death attorneys can help

Determining who is eligible to file a claim and receive damages in a wrongful death case can be complex — especially if the deceased was without a will. When you turn to our firm following the wrongful death of a loved one, we can help you understand your rights and ensure that all eligible survivors receive the compensation they deserve.

Contact us today at (800) 985-1819 to schedule a free consultation with a Chicago wrongful death lawyer from our firm. We’re here to answer your questions, explain the legal process, and help you navigate this difficult time.