Legal Question in Wills and Trusts in Illinois

I am sorry for your loss. If you have not done so, you should file your husband's will with the Circuit Court Clerk for the county in which he resided. Filing the will is not the same as probating the estate. Filing the will is required by law.

The Small Estate Affidavit pertains to personal estate, not real estate. If your husband's bills are not an issue, then you may be able to work with an attorney to handle the title to the house outside of probate or leave that for handling later, after you pass, according to your own will. Ideally, probate is the process by which everything is closed out, but where the time and expense can be saved without substantial risk, title to real estate can sometimes be handled informally. In this case, you and, probably, your children, would sign a deed as heirs conveying the title as intended by the will and recording an affidavit concerning your husband's rightful heirs. If you choose not to do anything at this time, then the beneficiaries of your estate will need to address the heirship and wills for both of you when the time comes.

I agree with Mr. Repay but would add, the smart way to cut off future claims from creditors is to open an estate. Let it sit open for six months. If no creditor files a claim during the six months, they will be barred from seeking payment on some of your husband's bills that have not been paid.

A small estate affidavit cannot be used to deal with issues relating to ownership of real estate. See an attorney to discuss your situation. You say the house is not in your name, if the house had anyone else on the title in addition to your husband, you will need to take measures to protect your right to continue residing in the house.