How to File a Partition Action in Illinois to Force Sale of a Deceased Parent's House

Disclaimer: This article is for general information only and is not legal advice. It explains Illinois law in simple terms so you can decide whether to consult a lawyer. For help with a specific case, contact a licensed Illinois attorney.

Detailed answer

When multiple people own the same piece of real property and they cannot agree about possession or disposition, Illinois law allows a co-owner to ask the circuit court where the property is located to divide the property (partition) or order its sale and divide the proceeds. The governing rules for civil actions, including partition actions, are found in the Illinois Code of Civil Procedure (see 735 ILCS 5). For an overview of the statute, see the Code of Civil Procedure: 735 ILCS 5/ (Illinois Code of Civil Procedure).

Key points under Illinois practice:

• Who may bring the action: A person with a legal or equitable ownership interest in the property may file. That includes heirs or devisees who have acquired an interest through probate, co-owners named on title, or persons holding a recorded interest. If the decedent’s interest has not been transferred, you may need authority from the probate court (e.g., letters) or other proof of ownership before the circuit court will act.
• Types of relief the court can order: The court can order (1) partition in kind (physical division) when the property can be fairly divided, or (2) partition by sale (a court-ordered sale, public auction, or sale through a court-appointed commissioner/receiver) when division in kind is impractical or would cause great prejudice.
• How proceeds and liabilities are handled: If the court orders a sale, mortgage liens, tax liens, and prior encumbrances are generally paid from sale proceeds before the owners’ net shares are distributed. The court will also allocate costs of the partition action, including the commissioner’s fees and attorney fees where appropriate.

Typical timeline and major steps

1. Confirm ownership and title status. Obtain the deed, recent tax bill, and a copy of the recorded title. If the property was owned by the deceased parent in his or her name alone, determine whether a probate estate exists or must be opened.
2. Attempt a negotiated resolution. Discuss buyout, voluntary sale, or property division with other owners. Courts often expect parties to attempt settlement first.
3. Prepare and file a Complaint for Partition in the circuit court where the property is located. The complaint must identify the property (legal description), the parties and their interests (as you know them), and the relief requested (partition in kind or sale). Attach copies of deeds or other documents that support your claimed interest.
4. Serve all necessary parties. All persons with a recorded or known interest must be named and served. If heirs or unknown claimants exist, the court will approve service by publication or other methods allowed by court rules.
5. Interim relief as needed. If there is a risk of waste, removal of property, or other harm, ask the court for temporary orders (injunctions) to preserve the property and prevent unilateral action by other owners.
6. Judgment and appointment of commissioner. If the court orders a sale, it commonly appoints a commissioner or trustee to advertise and conduct the sale according to court directions. The commissioner reports the sale results to the court for confirmation.
7. Distribution of proceeds. After payment of liens, taxes, sale costs and court-approved fees, the court will enter an order distributing the remaining proceeds among the owners in their respective shares.

Evidence and documents you should gather

• Recorded deed(s) and full legal description of the property.
• Death certificate of the decedent.
• Probate documents, if any (letters of office, order admitting will, estate inventory).
• Mortgage statements, tax bills, HOA records, insurance information.
• Any written agreements among co-owners, communications about offers to buy or divide, and appraisal or valuation reports.

When probate or another proceeding matters

If the late father’s interest was never transferred and title still lists him, the property may be part of his probate estate. The probate court’s orders can affect who has authority to act for the property. In many cases, heirs who have received their ownership interest through probate (or who can show a legal transfer outside probate) are proper parties to a partition action. If you are unsure, consult the probate clerk or an attorney about whether you must open probate or obtain letters of authority.

Costs, delays, and risks

Partition cases can be contested and take months to resolve. Expect filing fees, service costs, appraisal fees, commissioner fees, possibly auction costs, and attorney fees. The court may require that sale proceeds cover liens and taxes first. A forced sale can yield less value than an orderly private sale, especially at auction. Because of these tradeoffs, courts encourage settlement and voluntary sales when feasible.

For statutory reference to partition proceedings, see the Illinois Code of Civil Procedure: 735 ILCS 5/.

Helpful hints

• Start by confirming title at the county recorder’s office or via an online title search. Knowing who is on title clarifies who must be joined in the suit.
• Talk to other owners before filing. A negotiated sale or buyout is usually faster and cheaper than litigation.
• Get an independent appraisal early. A neutral value estimate will help negotiations and court decisions on sale method and price.
• If the property is in the deceased parent’s name alone, check whether someone already opened probate. If not, ask the probate clerk whether estate administration or an affidavit of heirship is required to clear title before sale proceeds can be distributed.
• Preserve evidence of ongoing expenses (mortgage payments, taxes, repairs). Courts consider contributions and expenses when allocating costs and credits among owners.
• Consider mediation. Many courts offer or require mediation before trial; it is often worth pursuing to reduce costs.
• Be realistic about timing and net proceeds. Court sales may not fetch full market value and can take many months to complete.
• Consult a licensed Illinois attorney if there are complex title issues, liens, multiple unknown heirs, or potential challenges to probate distributions.