Legal Question in Wills and Trusts in Illinois

If your son died without naming a beneficiary of his 401(k) plan, then his 401(k) plan goes to his estate. If he also died without a will, then his estate passes in accordance with the state's intestacy laws.

In Illinois, the law provides that if there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the deceased individual, the estate is divided among the parents, brothers and sisters of the decedent in equal parts. If one parent is dead, the surviving parent gets a double portion. If there is a deceased brother or sister, the descendants of a deceased brother or sister receive, per stirpes, the portion which the deceased brother or sister would have taken if living.

You need to first check with the 401(k) plan administrator. Some plans have specific default beneficiaries (e.g. parents and/or siblings) that determine who receives the account. Other plans simply have the decedent's estate as the default beneficiary. If the estate is the default beneficiary, then you might be able to use a small estate affidavit if the plan balance (plus your son's other assets) totals less than $100,000. If it is more than this amount, then someone will need to petition the probate court in the county where your son lived to ask to be named as administrator of his estate. If there is a Will, then the named executor should file the petition. If there is no Will, then a family member (usually parent or sibling) should do this.