In this article we explain how to sell your house after your spouse dies in Illinois. The process for selling your house will depend on whether you owned it with your spouse in joint tenancy with rights of survivorship or as tenants in common, whether your house was in your spouse’s name individually, or whether your house was in a trust. The deed to your property will state which of these ownership methods applies.
Most married couples own their home through joint tenancy with rights of survivorship or tenancy by the entirety, which for our purposes boils down to the same thing: when one of the owners dies, the surviving owner will automatically take over the deceased owner’s ownership interest.
If you own your home in joint tenancy with right of survivorship, you will automatically have the right to sell your home without taking any further action to transfer the property into your individual name prior to sale.
When people own property as tenants in common, this means that when one of them passes away, the property does not automatically pass to the surviving owner, but instead passes to the beneficiaries named in the deceased owners will or his or her heirs if no will exists. In this case, a probate case will be necessary in order to transfer the deceased owner’s property to his or her beneficiaries. Even if the deceased spouse’s will or state statute specifies that his or her share of the property is to pass to the surviving spouse upon death, the surviving spouse will have to open a probate estate to gain control of the deceased spouse’s share of the property for sale.
To learn more about probate, check out our article: The Illinois Probate Process Explained.
If a deceased spouse solely owned the property individually in his or her name individually, then the property will pass to the beneficiaries of the deceased spouse will or the deceased spouse’s heirs at law. Even though the surviving spouse will usually inherit the property, the surviving spouse will have to open a probate estate to gain control of the property for sale.
Many couples place their homes in a revocable living trust in order to ensure that probate will not be necessary if one or both of the spouses pass away. If the home is owned in either a revocable trust or an irrevocable trust, the terms of the trust will control what will happen to the property when one of the spouses passes away.
Usually this will simply be a transfer of ownership interest to the surviving spouse and appointment of the surviving spouse as sole trustee. This will usually happen automatically without the necessity of the surviving spouse or the trustee doing anything at all. If the terms of the trust give the surviving spouse control of the home upon the other spouse’s passing, the surviving spouse will be able to sell the home immediately without going through the probate process.
If the terms of the trust do not give the surviving spouse control of the home and appoint him or her as trustee, the trustee will have the discretion to take whatever action is necessary to benefit the beneficiaries of the trust according to the terms of the trust.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: