Understanding Your Options When a Co‑heir Refuses to Vacate or Sell (Illinois)

Short answer: In Illinois, if a co‑heir occupies inherited real estate and refuses to leave or to agree to a sale, other co‑owners generally can’t forcibly remove them on their own. The usual legal remedy is a court action for partition (division or sale of the property). You can also seek a court accounting for rents and profits or negotiate a buyout. Litigation can take months and may result in sale and division of proceeds. This article explains the common paths, the statutes that apply, and practical steps to take.

Disclaimer

This is general information and not legal advice. I am not a lawyer. If you need legal advice tailored to your situation, consult a licensed Illinois attorney.

How ownership usually works after someone dies

When property passes to multiple heirs, each heir typically becomes a co‑owner (tenancy in common) with an undivided share. That means each person owns a percentage interest in the whole property, not a separate physical part. Co‑owners have equal right to possession, but not exclusive right to exclude other co‑owners.

Primary legal remedies under Illinois law

Here are the usual legal paths available to co‑owners when one occupant won’t move or won’t agree to sell:

File a partition action: A partition action asks the court to divide the property among the co‑owners or, if division in kind is not practicable, order a sale and division of proceeds. Partition actions are governed by Illinois civil procedure (see 735 ILCS 5, Partition provisions). Courts can order sale even if one owner objects, and proceeds are split according to ownership shares after liens, costs and expenses are paid. Relevant law: provisions on partition actions in the Illinois Code of Civil Procedure (see 735 ILCS 5, art. 15).
Seek an accounting for rents and profits: If the occupant is living on the property and excluding other co‑owners from possession or deriving rental value, the other owners can request the court to require payment for the occupant’s share of rents or fair rental value (sometimes called an accounting or mesne profits). A partition action often includes such claims.
Buyout / negotiated settlement: Offer to purchase the occupant’s share (or let them buy out your share). Getting a professional appraisal and a written buyout offer can avoid litigation and is often faster and cheaper.
Eviction / forcible entry and detainer: Typical landlord/tenant eviction statutes don’t apply neatly when the occupant is a co‑owner. You should not attempt self‑help eviction (changing locks, removing belongings). If the occupant is a tenant by agreement, a forcible entry and detainer action may apply (see Illinois forcible entry statutes under the Code of Civil Procedure). Otherwise, partition / possession claims in court are the safer route.

What a partition action can do

A partition action gives the court several options:

Partition in kind: The court may physically divide the land if practical (rare for single houses on small lots).
Partition by sale: More common—court orders sale (public auction or supervised sale) and divides proceeds according to ownership shares after liens and costs.
Allocations for occupancy: The court can award credits or charges to reflect that one co‑owner occupied the property or paid taxes or mortgage payments for which others share liability.

See the Illinois Code of Civil Procedure for partition procedure (735 ILCS 5, Art. 15). A partition action can also include requests for an accounting or for possession.

Practical steps to take now

Confirm ownership and shares: Obtain the decedent’s deed, will, probate documents, and the current deed or title showing who owns what percentage.
Communicate in writing: Send a respectful, dated letter explaining your position (offer to negotiate or buy out). Preserve copies.
Obtain a professional appraisal: A current market appraisal helps in buyout discussions and in court.
Consider mediation or settlement: Courts and many attorneys encourage mediation to avoid the expense of partition litigation.
Keep records: Track expenses you or others pay for the property (mortgage, taxes, repairs) and any income from the property. These records matter in court for credits and accounting.
Avoid self‑help: Don’t change locks, remove the occupant’s belongings, or use force. That can create civil liability or criminal exposure.
Consult an Illinois attorney: A lawyer can evaluate whether a partition action, an accounting claim, a buyout, or another remedy is best for your situation.

What to expect in court

Partition cases can take many months. The court will consider whether physical division is practical. If the court orders sale, it will supervise sale terms or appoint a commissioner to sell. Sale proceeds pay liens, costs, taxes, and sometimes a share of sale costs. The remainder is divided by ownership percentages. The court may award credits for payments one owner made on behalf of all (mortgage, taxes) or charge an occupying co‑owner for fair rental value.

Costs, attorney fees, and timelines

Litigation costs and attorney fees can be significant. Illinois courts may allocate costs and sometimes attorney fees based on the case facts, but attorneys’ fees are not always recoverable by the winner. Expect several months to over a year depending on complexity, objections, and appeals. Settlement or buyout is often faster and cheaper.

Common complications

Title issues: Liens, mortgages, tax debts, or unclear probate status complicate partition and sale.
Adverse possession claims: Rare in inherited-property disputes, but long‑term exclusive possession claims could raise additional issues if someone claims ownership by adverse possession.
Occupied property value: An occupied property may sell for less, affecting proceeds.

Helpful hints

Get a copy of the recorded deed and any probate papers early.
Order a professional appraisal before offering a buyout or asking the court to sell.
Send written settlement offers and keep a paper trail of communications.
Keep paying property obligations you control (insurance, taxes, mortgage) and document payments—this supports claims for credits later.
Consider a temporary written occupancy agreement with rent and maintenance terms if you must co‑exist while pursuing options.
Use mediation to save time and money; courts often require or encourage mediation before trial.
Don’t attempt to evict or remove the occupant by force—use the court process.

Key Illinois statutes and resources

Partition actions and civil procedure: Illinois Code of Civil Procedure (see provisions on partition) — Illinois General Assembly: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1984&ChapterID=57
Forcible entry and detainer and related remedies (eviction procedures): see provisions in the Illinois Code of Civil Procedure — Illinois General Assembly: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1984&ChapterID=57
Illinois courts and local rules: check the county circuit court website where the property lies for local filing requirements and forms.

When to call a lawyer

Talk with an Illinois real estate or probate attorney if any of the following apply: the occupant refuses to negotiate; title or probate is unclear; there are liens or mortgages; you want to file a partition action; or you want to calculate potential credits, rents, or liability. An attorney can explain likely outcomes, estimate costs, and represent you in court or mediation.

Bottom line: You have legal remedies if an heir won’t move out or sell, but you generally must use the courts to force a sale or division. Try to negotiate a buyout or mediation first to avoid costly litigation. Always document communications and payments, and consult an Illinois attorney to pursue the best course for your circumstances.