What Happens to Real Estate in Illinois When the Owner Dies?

Let’s be honest—dealing with legal matters after someone dies is confusing, stressful, and often overwhelming. But when it comes to inheriting real estate in Illinois, it doesn’t have to be. One of the biggest misconceptions people have is that probate (that long, complicated court process) is always required to take ownership of a family home after a loved one passes. This just isn’t true.

In this blog post, we’ll break down the basics of intestate succession and explain how real estate is transferred to heirs without the need for probate. Even if there’s no will, the law is on your side. So, take a breath and relax—you’re already in better shape than you think.

What is Intestate Succession?

Let’s start with a simple question: What happens if someone dies without a will?

If a person dies without a will, they are said to have died "intestate". When this happens, Illinois’ intestate succession laws (755 ILCS 5/2) automatically decide who inherits their property. It doesn’t matter if there’s no will; the law takes over and makes sure the deceased’s assets (including real estate) go to their closest family members. 

Now, most people assume that without a will, the house is stuck in legal limbo until a court steps in. This isn’t true. In Illinois, real estate transfers automatically to the decedent’s heirs as soon as they die, "by operation of law".

Ok - What Does "By Operation of Law" Mean?

"By operation of law" means that something happens automatically, without anyone having to take any action. In this case, the law says that when a person dies owning real estate, their heirs immediately become the legal owners of that property—whether or not they file anything with the court or recorder of deeds.

No probate? No problem. Ownership of the home is transferred automatically, and there’s no need for a judge to grant you ownership. 

How Real Estate Transfers Automatically

Okay, so how exactly does this magic happen? Let’s break it down.

In Illinois, when someone passes away, their real estate doesn't just sit in limbo waiting for a court case to be filed. It transfers directly to the decedent's heirs, and here's the kicker: It happens instantly upon death. The title to the property automatically shifts to the heirs at law (the family members who are legally entitled to inherit).

Think of it like this: The house is still sitting in your loved one’s name on paper, but the moment they pass away, ownership slips into your hands—even if your name isn't on the deed yet.

Who Gets the House Under Illinois Intestate Laws?

Now that we know the property transfers automatically, the next big question is: "Who gets it"?

Illinois law follows a clear order of inheritance, known as the rules of descent and distribution. Here’s how it works:

- If there’s a surviving spouse and children, the spouse gets 50%, and the children split the remaining 50%.
- If there are children but no spouse, the children inherit 100%, divided equally.
- If there’s a spouse but no children, the spouse inherits everything.
- If there’s no spouse or children, the inheritance goes to the next closest relatives—parents, siblings, nieces, nephews, and so on.

Example Time!

Imagine that a woman named Mary passes away without a will. She was married to John, and they had three children together: Alice, Bob, and Carol. Here's what happens to her house:

- John inherits 50% of the property, and Alice, Bob, and Carol split the other 50%. So each child gets one-sixth of the house.

Now, some might wonder, "But what if John's name wasn't on the deed?" It doesn't matter. The law automatically makes him a co-owner of the property along with Alice, Bob, and Carol.

Why Probate Isn't Always Necessary for Real Estate

One of the biggest myths about inheriting real estate is that you must go through probate to take control of the property. This simply isn’t true. 

In fact, probate is only required if the estate includes more than $100,000 in personal property (like bank accounts, cars, or cash) which doesn't include real estate.

The key takeaway? Probate isn’t necessary to inherit a family home. You already own the property, even if your name isn’t on the deed yet. 

How to Prove You Own the Property

Now, even though the law says you own the property, you’ll still need to prove it if you want to sell the house or take out a mortgage. Here’s what you need:

1. Death Certificate: You’ll need a certified copy of the death certificate to prove the original owner has passed away.
2. Affidavit of Heirship: This is a document that lists all the heirs and their relationship to the deceased and is prepared by your real estate attorney.

Once you have these documents, a title company can update the records showing the heirs as the new owners on title.  It’s that simple (with the right attorney and title company)!

Example: Maria’s Story

Maria’s mother passed away owning a home, but Maria wasn’t sure what to do next. She thought she’d have to file probate to inherit the house. But after talking to Deranian Law, she learned that all she needed was her mother’s death certificate and an affidavit of heirship. Within weeks, she had the house in her name.

No court fees. No waiting period. Just a smooth transfer of ownership.

No Will? No Problem!

If you’ve lost a loved one and you’re unsure what happens next with their home, don’t worry. The law is set up to make things easier than you might think. In Illinois, you don’t need to jump through hoops to inherit real estate. Ownership transfers automatically to you as an heir, and probate is often unnecessary.

What You Should Do Next:

Step 1: Get a copy of the death certificate.
Step 2: Call me at 773-419-4801.  I'll draft the affidavit of heirship to prove you are an heir and work with a title company to update the deed or sell the property.  I can also refer you to a realtor who specializes in inherited real estate.

That’s it! You’re in control of the family home, and you didn’t need to step foot in a courtroom.  Stay tuned for more real estate inheritance news.  And, sorry for your loss.