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Do I need to enter probate for selling my mother's home (Mokena, IL, Will County)?

Mokena, IL |

My mother recently passed away (father already deceased). She owned her home free and clear (approx value $175k), and had a will naming me and my sister as co-executors. The will states that each of her 7 surviving children get 1/8th of her earthly possessions, and my 1 deceased brothers kids get the other 1/8th. My siblings all get along fine, and there is no contention, and we are all in agreement on selling the home. But I would like to know if in order to sell the house, do we need to go through probate? We would prefer to just sell the home, and then divide the profits equally, but if we do that, do we all have to sign the deed/title that is currently in my father and mothers name? Can the home closing attorney/title company facilitate this?
Any help would be appreciated

Thank you all for the prompt responses. Boy am I glad I found this website! Just to clarify, my mother named my sister and I as co-executors in her Will, and the Will further states that the the executor shall have numerous powers, including "to sell any real or personal property of my estate...." Also, my mother executed a "Durable Power of Attorney" document, naming me as her true and lawful agent and attorney with powers, including "to undertake performance of any and all acts, whether or not otherwise specifically enumerated herein, including the sale of any property....." If my sister and I are co-executors, and these powers to sell my mom's real estate are outlined in her Will, and all of the other inheritants are in agreement, and I have been named as power of attorney, can we bond over any title issues with the Title Company?

Attorney Answers 7


  1. Yes, you need to go through probate. It is good that all the relatives get along. This will make things much easier for you. There are many fine attorneys in your area who can assist you.


  2. It will not be possible to transfer ownership (sign a deed) of a home owned by the estate of a deceased person without an estate representative (executor) being named. No one other than the estate representative has the authority to sign a listing agreement, contract of sale, deed so the answer is yes you have to open an estate. It would appear the value of this estate exceeds the small estate value for any jurisdiction I know of. Hire an attorney to assist you and the process still may be fairly simple.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  3. It appears that probate will be necessary assuming that the house was just owned in your parents names (not a living trust or land trust). The reason that you need to probate is that when a person dies there is a statutory "claims period" of two years from the date of death. When you are selling the home the title insurance company will not want the risk of having possible claims being asserted against them so they will either want the assurances of probate or the posting of a bond and other documents giving them some protections against claims.

    It is my opinion that probate proceedings will be slightly more expensive than the posting of a bond but that it will avoid a bunch of other potential problems.

    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.


  4. Since the home residence/real property is currently titled in your mother and father's name, and assuming ownership was held in joint names and your father is also deceased, a probate is required. You cannot sign a new conveyance deed on behalf of a deceased person (a conveyance deed is the legal instrument used to legally transfer the property to the new buyer) without proper probate/court papers evidencing you and your sister's legal authority to do so. The fact that everyone is in agreement about this sale is great and an added bonus, but still does not enable you to circumvent a probate proceeding. A title company cannot complete the transaction without the probate documents. If you have a valid will and all siblings and grandchildren get along, an informal probate may be opened, which is typically more efficient and timely than a contested probate.


  5. I agree with my colleagues. Probate will be required in order to admit the Will and make its terms effective. This should be handled with the assistance of a probate attorney. Even with everyone agreeing, there is still a potential for personal liability if the estate is not administered correctly.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  6. In addition to opening a probate to transfer good title to the house, assuming she resided in IL there is also something known as "bond in lieu of probate" which allows you to transfer title without opening probate. Contact a local title company to inquire about it. There is a fee, so you will need to compare the cost of the bond vs. the total cost to probate (filing fees, notice, administrative or legal assistance, etc.), but many times the bond in lieu of probate ends up being the less expensive and/or fastest way to transfer title. You may want/need to contact several title companies to learn more about this option and the fee associated with it. Best wishes.

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kane County. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you this answer helpful.


  7. Sorry for Your loss. Since your mom just recently passed away probate would cut off the two year statute of limitation against creditor claims against her estate. You have not stated if there were other assets in the estate besides the real estate. That may necessitate probate proceedings If the house is the sole asset, then a bond in lieu if probate may be an available option provided that your deceased siblings children are of majority and have no disabilities. You would need to consult with an attorney familiar with both probate and real estate law.

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