When a Probate Sale Is Required
A probate sale is required when the decedent owned the property in their individual name — with no joint owner, no Transfer on Death Instrument (TODI), and no trust — at the time of death.
In that situation, the property cannot be sold or transferred until a personal representative (executor or administrator) is appointed by the Cook County Probate Division, obtains Letters of Office, and has authority to act on behalf of the estate.
Probate is NOT required when the property passes automatically by operation of law — for example, when it was held in joint tenancy (survivor takes without probate), when there is a recorded TODI (beneficiary takes without probate), or when the property was in a living trust (successor trustee acts without probate). These are the very tools that good estate planning uses to avoid this situation.
| How Property Was Held | Probate Required? | How It Transfers |
|---|---|---|
| Decedent's name alone (no other mechanism) | Yes | Probate court — executor's deed at sale |
| Joint tenancy with survivor | No | Affidavit of Surviving Joint Tenant |
| Transfer on Death Instrument (TODI) | No | Beneficiary records affidavit with death certificate |
| Revocable living trust | No | Successor trustee conveys per trust terms |
| Tenancy in common (deceased's share) | Yes — for deceased's share | Deceased's share goes through probate |
The Executor's Authority to Sell
To sell estate property, the personal representative must first obtain Letters of Office from the Cook County Probate Division. This requires filing a petition for probate, providing the original will (if any), paying the filing fee, and being appointed by the court.
What Letters of Office Authorize
- Signing real estate contracts on behalf of the estate
- Listing the property with a real estate agent
- Granting access to the property for inspections
- Executing the deed at closing
- Receiving sale proceeds into the estate account
- Paying estate debts from sale proceeds
Executor's Fiduciary Duties
- Sell for fair market value — not significantly below
- Act in the interest of all beneficiaries, not just some
- Avoid self-dealing (do not buy the property yourself without court approval)
- Maintain the property while in the estate (utilities, insurance, security)
- Account for all sale proceeds
- Pay estate debts and taxes from proceeds before distributing
Independent vs. Supervised Administration
Illinois offers two types of probate administration — select each to see how the sale process differs:
Independent Administration
The most common form of probate in Illinois. The executor (called a personal representative) acts independently — without court approval for each transaction. The executor can list, accept offers on, and close the sale of estate property without seeking court permission, as long as they follow their fiduciary duties to the estate.
Sale Steps:
- 1File petition for probate and issuance of Letters of Office
- 2Publish notice to creditors and heirs
- 3Obtain Letters of Office — this is the executor's authority document
- 4List the property and accept an offer
- 5Negotiate and execute the real estate contract as executor
- 6Close the sale — executor signs the deed as personal representative
- 7Distribute proceeds after paying estate debts
Typical Timeline
Typically 6–12 months from opening to closing, depending on the estate's complexity
Court Approval for Sale
Not required for the sale itself (executor acts independently)
Buying a Probate Property: What to Know
Purchasing a home from a probate estate is not inherently risky, but it does require additional due diligence and patience:
Verify Letters of Office
Before signing a contract with an estate, confirm the personal representative has current, valid Letters of Office. Ask for a copy. Your attorney should verify these are current and that the representative is not acting beyond their authority.
Expect a Longer Timeline
Probate sales — especially in supervised administration — take longer than standard transactions. Build 30–90 days of additional time into your expectations, particularly if court approval of the sale is required.
Property Sold "As-Is" Is Common
Estates frequently sell property in as-is condition because the personal representative often has limited knowledge of the property's condition and no ability to make representations about what they do not know. Your inspection rights are critical — insist on a full inspection contingency.
Get Owner's Title Insurance
An executor's or administrator's deed provides limited warranties. Owner's title insurance is essential for probate purchases — the title insurer will investigate and insure against the risks that come with estate transfers, including missing heirs and estate administration issues.
Tax Issues: Stepped-Up Basis and Capital Gains
The "stepped-up basis" is one of the most powerful tax benefits available to heirs. When someone inherits property, their cost basis for capital gains purposes is "stepped up" to the fair market value at the date of the decedent's death — not the decedent's original purchase price.
Example: Decedent bought the home in 1985 for $80,000. It is worth $400,000 at death. The estate (or heir) has a cost basis of $400,000. If the estate sells for $400,000 shortly after death, there is no capital gain. The $320,000 of appreciation the decedent accumulated is permanently excluded from capital gains tax.
This makes a prompt sale after death (while value equals stepped-up basis) particularly tax-efficient. Waiting for the property to appreciate above the date-of-death value before selling will create taxable capital gains. The executor should obtain a professional appraisal dated as of the date of death to document the stepped-up basis for tax purposes.
Frequently Asked Questions
Selling an Inherited Home? We Can Help.
Illinois Estate Law handles probate real estate sales for executors and personal representatives throughout Cook County — from opening the estate to closing day. We also represent buyers purchasing probate properties. Schedule a consultation to discuss your situation.
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