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Can I be forced to sell my mother's house if it is in probate? I want to wait until the probate takes its course.

Chicago, IL |

There should not be any rush to sell because the heirs are not depending on this money to live; they are well off; I know the law protects heirs, but I should not be forced to live elsewhere if I could live in the house until the end of probate.

Attorney Answers 4


I'm sorry for your loss. You will need to pay your mother's bills out of her probate estate prior to distributing the house to the heirs. Before doing anything, please consult with an experienced probate lawyer in Illinois to provide you with your options and otherwise guide you in the estate administration. Good luck to you.

This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.

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Of course you could buy out the other individuals interest in the house if you have the money coming from other assets in the estate. If you are not paying rent then the others might not be too happy.

There are other possible considerations. Some work in your favor and some do not. You should consult with a local probate attorney to get the wisest advice for your situation.

Best wishes.

Legal Disclaimer: Paul A. Smolinski is licensed to practice law in the State of Illinois only, and as such, his answers to AVVO inquiries are based on his understanding of Illinois law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Smolinski, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.

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Dara J. Goldsmith

Dara J. Goldsmith


From a practical standpoint, it is much easier to sell the property in probate when the fiduciary is the only one handling the sale rather than the multiple beneficiaries. This can also save the relationship among the multiple beneficiaries. If you are occupying the property, you really need to be paying rent to the Estate and probably all of thebills that would not be incurred if you were not using the property, unless the court orders otherwise. If you are the fiduciary, you may not be acting in the best interest of the Estate. I urge you to speak with counsel about these issues.


You don't mention an important fact- are you the fiduciary? It's up to the fiduciary whether to sell the house, and the fiduciary can't put his or her convenience ahead of obligations to the estate.

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My condolences to you and your family for your loss. As Attorney Brophy points out, in a Probate there is a 'fiduciary'. In Illinois that would be an Executor of a Will, or an Administrator if there is no will. Whether that person is you, or someone else, that is the place to start. Liquidation of any asset, or passing the asset along 'in kind' without selling it are all possibilities. And, the timing can be a part of the discussion. The Executor or Administrator should engage an attorney. If she/he has, then contact that attorney. If you are in disagreement with that Attorney, then you will need to contact a separate attorney. Good Luck

If you choose, please select "helpful" or a "best" answer, below. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kendall County, Illinois. However, I serve clients in many counties within the state of Illinois. My areas of practice involve Estate Planning (Trusts/Wills/Powers of Attorney/) and Probate, Business and Real Estate Counseling. Please take note that the above answer does not create an attorney/client relationship, and that all AVVO responses from both me and my attorney colleagues are for general legal education, only. Information obtained from AAVO or any other internet location should never be used as a substitute for competent legal advice from a licensed attorney that practices in your state. Please also be advised that the passage of time can often diminish the likelihood of success, and some matters will be barred by a Statute of Limitations. So, do not hesitate in seeking an attorney to specifically advise you. Finally, any reference to a specific law or theory of law is my best thought on the topic based upon a brief consideration of the topic, not a complete analysis of your specific situation. Best wishes as you seek resolution of your matter, and I hope you this answer helpful.

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