When a loved one dies owning real estate, families often discover that grief comes with paperwork—and the home becomes the center of it. Who has the authority to access the property? Can the mortgage be paid? Can the house be sold? Who can sign the deed? In Illinois, the answers depend less on family dynamics and more on one practical issue: how title is held and what planning documents exist.
This guide is written for two audiences: Illinois families trying to do the right thing, and reporters looking for a clear, reliable explainer. It is Illinois-focused and nationally relevant in the sense that the same misconceptions appear nationwide—especially the belief that a will avoids probate or that heirs can sign “on behalf of the estate” without legal authority.
Key takeaways
- Title controls: How the deed is written often determines whether probate is required.
- A will guides who should inherit, but it typically does not avoid probate for real estate held in the decedent’s name alone.
- A revocable living trust is one of the clearest ways to transfer a home without a full probate case—if it is properly funded.
- A Transfer on Death Instrument (TODI) can be a powerful Illinois tool for a primary residence, but it must be drafted and recorded correctly.
- The biggest delays usually come from missing documents, unclear title, unpaid taxes/insurance, and families acting before legal authority is established.
Quick Definitions
Probate: A court-supervised process to appoint someone with legal authority to gather assets, pay valid debts, and distribute property.
Estate: Everything a person owns and owes at death (assets and liabilities).
Executor/Administrator: The person with legal authority to act for the estate. Authority is confirmed by court-issued documents (often called Letters of Office).
Revocable Living Trust: A planning tool that can hold assets during life and direct distribution at death. If real estate is titled in the trust, it can often transfer without a full probate case.
Joint Tenancy: Ownership where the surviving joint tenant typically becomes the owner automatically upon death (outside probate, with proper documentation).
Tenancy in Common: Co-ownership where the decedent’s share generally does not automatically transfer to the other owner; it commonly passes through probate or a trust/TODI.
Transfer on Death Instrument (TODI): An Illinois document recorded during life that can pass a home to named beneficiaries at death, outside probate, if properly executed and recorded.
Start here: How is the home titled?
Before anyone makes plans to sell, refinance, or sign documents, confirm the current deed and how the property is owned. Common scenarios include:
1) Sole ownership in the decedent’s name
If the deed lists only the decedent, the home usually cannot be transferred or sold until someone has legal authority—often through probate—unless another transfer method applies (such as a properly funded trust or a valid TODI).
2) Joint tenancy with right of survivorship
Often, the surviving owner can become the sole owner outside probate. Families still need to complete the proper documentation steps to update records and avoid later title issues.
3) Tenancy in common
The decedent’s share does not automatically pass to the co-owner. This frequently requires probate or trust administration to transfer the decedent’s interest.
4) Trust ownership
If the home is titled in a properly created trust, it may transfer through trust administration rather than probate, depending on the trust terms and other facts.
5) TODI recorded
If a TODI exists and was properly recorded, the home may transfer to beneficiaries without a full probate case, depending on the facts and compliance.
The big misconception: “There’s a will, so we can skip probate.”
A will is essential for many families—but it is not a magic bypass. A will typically tells the court who should inherit and who should serve. If real estate is solely in the decedent’s name, the home usually still requires a legal mechanism to transfer title.
This is one reason trusts, TODIs, and proper deed planning are so valuable: they address transfer mechanics, not just intent.
The main ways Illinois families transfer a home after death
Option A: Probate administration (when court authority is needed)
Probate may be necessary when the home is solely in the decedent’s name and there is no trust ownership or valid TODI transfer available, or when there are disputes, unclear heirs, or other issues requiring court supervision.
Probate provides a court-appointed representative with authority to:
- maintain the property,
- coordinate a sale or transfer,
- resolve liens or claims as required, and
- distribute proceeds or transfer title appropriately.
Without court authority, families often find that they cannot complete basic tasks that require a legal signer, such as selling the property, signing a deed, or handling certain lender or title company requirements.
Option B: Trust administration (often smoother when properly funded)
A revocable living trust can be one of the clearest paths for real estate transfer because it allows a successor trustee to manage and distribute assets under the trust terms, often without opening a full probate case.
The most common issue is funding: if the trust exists but the home was never properly deeded into the trust, the trust may not help with the house and probate may still be needed.
Option C: Transfer on Death Instrument (TODI) (Illinois-specific tool)
A TODI can transfer a home directly to named beneficiaries outside probate if it was properly executed and recorded during life. It can be a useful option for a primary residence when the family’s goals are straightforward.
However, TODIs must be drafted and recorded correctly. If something is missing or inconsistent, title companies may raise objections and the family may be forced into additional legal steps.
Option D: Joint tenancy planning (helpful in some cases, risky in others)
Joint tenancy can avoid probate, but it may also create problems during life, such as creditor exposure, relationship changes, or an uneven distribution among children. It is not one-size-fits-all and should match the overall estate plan.
Common mistakes that cause delays, disputes, or clouded title
- Assuming heirs can sign documents without authority
- Not pulling the deed early and discovering title issues after listing
- Ignoring insurance, taxes, utilities, or HOA obligations
- Using DIY transfers that create title problems or future disputes
- Treating a trust as funded when the home is not actually titled to it
- Signing listing agreements or contracts before authority exists
- Allowing informal occupancy arrangements that lead to conflict
- Waiting too long to begin probate when it is clearly required
Step-by-step checklist: The first 30 days after a death involving real estate (Illinois)
Days 1–7: Stabilize and document
- Obtain multiple certified death certificates (you will likely need more than one).
- Secure the property and document contents.
- Confirm homeowner’s insurance coverage is active; notify the insurer of the death.
- Gather key documents: deed, mortgage statements, property tax bill, HOA information, insurance.
- Locate the original will, trust, or TODI, if any.
Days 8–14: Confirm title and the authority path
- Pull the most recent recorded deed and confirm how title is held.
- If a trust exists, confirm whether the property was actually deeded into it.
- If a TODI is believed to exist, confirm it was recorded and obtain a copy.
- Make a list of potential heirs/beneficiaries and keep communications organized.
Days 15–30: Plan the transfer or sale pathway
- If probate appears necessary, consult counsel to confirm the best filing approach and timing.
- If selling, do not sign contracts that assume someone can convey title before authority is established.
- Keep mortgage, taxes, and insurance current when possible, and coordinate with the lender/servicer as needed.
- If the home will be occupied, document who is there and under what agreement.
- Create a “property file” with receipts for maintenance, repairs, taxes, utilities, and insurance.
What reporters often get wrong
- “The will transfers the house.” A will expresses intent, but the family may still need a legal mechanism to transfer title.
- “Heirs can sell it if everyone agrees.” Agreement does not replace legal authority required for a valid transfer.
- “Probate is always avoidable.” Sometimes probate is the cleanest tool for clear authority and orderly administration.
- “Joint tenancy is always the solution.” Joint tenancy can avoid probate, but it can also create lifetime and inheritance risks.
FAQ
Does a will avoid probate for a house in Illinois?
Not usually. A will states who should inherit, but if the house is titled solely in the decedent’s name, a legal process is commonly needed to transfer title unless another transfer method applies.
Can heirs sign a deed to transfer the house after death?
Typically, heirs cannot sign “for the estate” without proper authority. In many situations, a court-appointed representative or trustee must handle the transfer.
How do I find out how the property is titled?
Start with the most recent recorded deed. Title determines the path forward.
What is a TODI and does it work in Illinois?
A Transfer on Death Instrument (TODI) is an Illinois document recorded during life that can pass a home directly to named beneficiaries at death, outside probate, if properly executed and recorded.
If the decedent had a trust, does that automatically avoid probate?
Only if the trust was properly funded. If the home was never deeded into the trust, probate may still be needed for the real estate.
Can the mortgage still be paid after the homeowner dies?
Yes. Mortgage payments can typically continue. The larger issue is who has authority to sell, refinance, or negotiate changes.
How long does probate take in Illinois when real estate is involved?
It varies based on complexity, court schedules, and whether there are disputes or title issues.
Can we sell the home before probate is finished?
In many cases, selling requires legal authority first. Once authority is established, a sale may be possible depending on the circumstances.
What if family members disagree about keeping or selling the house?
Disagreements often require a formal process to establish authority and a structured pathway for decision-making.
What is the biggest mistake families make with inherited property?
Acting before confirming title and authority—such as signing contracts or attempting informal deed transfers.
About the Author
Dionna Reynolds, Esq. is a Chicago-area attorney and the founder of the Law Office of Dionna Reynolds, LLC, serving individuals and families with estate planning, probate administration, and real estate matters. Her guidance is Illinois-specific and nationally relevant for families navigating common inheritance and real estate-transfer issues.
Disclaimer This article is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. For advice about your specific situation, consult a qualified attorney licensed in your jurisdiction.