Legal Question in Real Estate Law in Illinois

My mom recently passed away and left my brother and I in charge of her estate. She placed her bank accounts into a trust and put both of our names on it. We recently went to place her property up for sale and found out it is under water. Is it possible for us to walk away and allow it to fall into foreclosure even though there is still a little bit of money in her bank accounts?


Asked on 8/07/12, 3:31 am

2 Answers from Attorneys

By being "in charge of" suggests you are co-executors. As such you stand in a fiduciary relationship to the estate, meaning you are supposed to do what's best for her estate, not what's best for yourselves even if you are the sole heirs/beneficiaries. Allowing the property to go into foreclosure could subject her estate to a lawsuit that could result in a deficiency judgment for the difference between what the loan amount is and the amount the property is sold for at a foreclosure sale, and the deficiency could wind up being a claim against the estate. You need probate/real estate/tax counsel to help assess the best course of action.

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Answered on 8/07/12, 6:45 am
Henry Repay Law Offices of Henry Repay

This is not a question easily answered here. The funds held in trust may not be subject to claims in the estate, but an attorney should advise you based on a thorough review of the documents and how the bank accounts and other assets were held. You may also want to get better feedback from an experienced real estate agent about the likely market value of the property and determine whether it is worth the effort to try to sell the property short. Finally, even if funds are subject to claims, there is a question whether it is worth your while expending time and resources or whether to let the opening of the estate default to the creditor or another party. Set up an appointment with a qualified probate attorney.

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Answered on 8/07/12, 7:21 am


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