Legal Question in Real Estate Law in Illinois

I was divorced in early 2006. In my divorce papers, we agreed i get to keep the house if I refinance or sell the house to get my wifes name off the mortgage and she would sign the quit claim deed during the process. However my wife lived in the house until the divorce was final and got behind on payments. I had to get the house out of foreclosure proceedings and then my credit was tarnished. I tried to refinance but was turned down a couple of times because of my credit score. The banks told me to give it a year or so and make payments on time and they would take another look at it. I started remodeling the house and fixing it up to possibly sell. My exwife passed away in Sept. of 2011. The deed was never signed. Can I send a death certificate to the bank to get her name off the mortgage or do I need to open up an estate process? I live in Illinois and not sure of the law here. thank you, Lance


Asked on 5/28/12, 6:15 pm

1 Answer from Attorneys
Stephen Messutta

Normally if H&W own property in joint tenancy and one dies, a title company will accept paperwork such as you are suggesting to clear title in your name. Unfortunately under Illinois law the filing of a divorce case automatically converts that kind of ownership into tenancy in common subject to the final divorce decree, meaning a title company won't be able to clear title the same way. You can ask but most likely you will need to have an estate opened and then the administrator, pursuant to the divorce decree, should be able to issue an appropriate deed from her to you. Had she signed a deed and put it into escrow when the divorce was finalized, things might be different; unfortunately it's too late for her to do that...

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Answered on 5/29/12, 8:01 pm


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