no need to leave your home to receive legal consultations and services - Call or click to learn more about phone and videoconferencing with our attorneys

How to Sell Your House After Your Spouse Dies in Illinois

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

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. 

Selling a Home Owned as Joint Tenants With Rights of Survivorship

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.  

Selling a Home Owned as Tenants in Common

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. 

Selling a Home if Your Deceased Spouse Solely Owned The Property in His or Her Name

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. 

Selling a House After Your Spouse Dies if it Was Owned in Trust

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.  

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

Selling a Home Owned as Joint Tenants With Rights of Survivorship

Need Legal Help? 

Schedule a

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.

Leave a Comment With Your Questions

Read more about

Estate Planning

We offer free, paid & Online CONSULTATION in:

Estate Planning

Schedule a consultation with our Illinois & Iowa Attorneys

We offer free, paid & online consultation in nearly every area of law throughout Illinois and Iowa. We have a range of options to assist you with your legal needs.

What happens at a legal consultation?
Meet with an attorney for a free consultation to discuss what type of matter you need to discuss with an attorney.
Over the Phone Legal Consultations
Similar to In-person consultations, you discuss your legal needs with our attorneys to discuss your matter.
An online consultation is like an in-person and an over the phone online Consultation. You meet face to face with our attorneys through our online portal.
Paid Legal Consultations
While a free consultation allows us to discuss what we can do in general terms for your legal matter, a paid consultation allows us to answer direct questions.

More Illinois Probate & Estate Administration Law Episodes

contact us

Monday to Friday
9am - 5pm

Contact Us
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a free consultation for legal advice specific to your situation.

Here are some articles that may interest you
Schedule a

Contact us for a Free Consultation

Schedule a free consultation

O'Flaherty Law is happy to meet with you by phone or at our office locations in:

Who We Are
We are your community law firm. Our Illinois & Iowa Attorneys are committed to providing exceptional client service in a cost-effective manner in the areas of Family Law, Probate, Estate Planning, Civil Litigation, Guardianship, Criminal Defense, Corporate & Contract Law, Bankruptcy and Real Estate.

Some of Our Accomplishments

Best Child Support Lawyers in Chicago
DuPage County Probate Attorney
Kevin P. O'Flaherty
Rated by Super Lawyers

loading ...
Naperville attorney
DuPage County Probate Attorney

Subscribe to our mailing list

* indicates required