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What to do when your Loved One Dies with Real Estate

This question is a common question among people after a loved one has deceased.  Often times, this is the question that comes a couple of weeks after somebody has passed away. The answer depends on your situation.  For example, let us assume that your 75-year-old mother owned a house after her husband deceased at the age of 65.  The house is titled in Jane Smith’s name.

 In this particular example, the bad news is that Jane Smith’s real estate must undergo a process called probate in Illinois. Probate court is the court which decides who should inherit your assets such as your real estate property. In Illinois, there are two (2) types of probate administration.  The first and most popular type of probate action is independent administration, which means that an independent administrator or executor gets appointed by the courts.  An independent administrator or executor gets appointed by the court after a person petitions the court to be appointed as the independent administrator or executor of the estate.


To get appointed by the Court, an independent administrator or executor must give the appropriate heirs notice of the court proceeding and the court date so they can object if they do not feel that the person petitioning for the independent administrator or executor position is appropriate. Unfortunately, many people falsely assume that a will avoids probate court.  A will does not avoid probate court.


Typically, the way to avoid probate court is to title your real estate in your Revocable Living Trust’s name.  For example, Jane Smith’s real estate must be titled in her Revocable Living Trust or Living Trust’s name. A Revocable Living Trust or otherwise known as a “Living Trust” is an estate document that describes who your family is and how you want them to inherit your assets.


Unlike a Will, a Revocable Living Trust avoids probate court and is administered without a court proceeding if drafted properly.  There are several advantages that a Revocable Living Trust offers that a Will does not offer such as:

  • Avoidance of Probate Court;
  • Beneficiary’s inheritance are not subject to divorced spouses through alimony or lump sum distributions due to the “Spendthrift Provision” or creditor concerns;
  • A Revocable Living Trust allows a smooth transfer of title describing your beneficiaries and heirs after death or an incapacity;
  • A Revocable Living Trust is not a public document and instead is a private document where only your beneficiaries have right to see the documents;
  • A Living Trust can distribute your property and assets in a manner that restricts your love one’s inheritance to protect them against age, drug or alcohol use, or a misuse of their trust assets;
  • A Living Trust can avoid guardianship court for minor children because a properly distributed asset to minors should utilize the Uniform Gifts to Minors Act or a proper custodian account for minors.


Gateville Law Firm and Sean Robertson concentrate in real estate and estate planning law, which are interrelated.  Sean Robertson is a 15-year experienced real estate and estate planning attorney.  Sean Robertson was nominated by his peers as an Elite Lawyer.  Whether you or your family needs an estate planning or an updated estate plan for your family’s legal needs, please contact us at 630-780-1034.  Our law firm services in the Naperville and Yorkville areas such as Oswego, Naperville, Aurora, Montgomery, Yorkville, Plano, Lisle, Plainfield, Joliet, and Shorewood.

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