Legal Question in Wills and Trusts in Illinois

Even if your father did not have a will the estate must go through probate in order for his assets to be legally distrubuted. Illlinois intestate law will govern. You need to file a probate action on your own. Probate is not an automatic process.

Regarding the martial home, you need to determine exactly how the house was titled. If the house was held by them as joint tenants with rights of survivorship (or tenancy by the entirety) then the house passes to her outside of your father's estate. If it was held with her as tenants in common then 1/2 would be her and 1/2 would pass through your father's estate. If it was held just in your father's name then it would all pass through your father's estate, and assuming there was no Will, she would be entitled to half the estate and you and your siblings would share the other half.

Probate is not automatic. If you determine that your father had assets in his name then someone needs to petition the court to be named administrator. His wife would have priority to serve, but you could still start the process.

"Can she sell the home if his estate is not in probate?" If she's willing to act fraudulently, I know how she could sell the home without opening a probate estate before the Court.

"Does an estate automatically go into probate if there is no will?" No.

"Will the sale of the home be legal if, since according to Illinois law, she owns 1/2 of the house and my two siblings and myself own the other 1/2 equally?" Such a sale could be successfully challenged, but I recommend that you avoid that long, painful and expensive route by hiring a lawyer to immediately assist you. That lawyer would probably take a number of steps, some involving the probate Court, to prevent an unjust sale.

Feel free to call me to discuss this further. I always give free initial consultations to new clients.