Legal Question in Wills and Trusts in Illinois

Is a will made out in 1993 still valid if a quit claim deed was done in 1995? My husband's mother did her will in 1993 giving her two sons equal shares of her property. The older son, her executor, had a quit claim deed done in 1995 to get her name off the property giving it to the brothers. He said she was than awarded to the state of illinois and if she ever went into a nursing home it was to prvent the state from coming back on the farm. So when she died in 1998 the will was not put into probate because her executor told my husband, the younger son, that it didn't needed to be probated because she didn't have anything at the time of her death. Since the sons names are on the quit claim deed, Did they get clear title of the land? My husband is trying to stettle his property but because it always goes bad to why the will was never put into probate can the land ever be stettle? Does the quit claim deed override the will? Is the will still valid? How much will it cost to be the will into probate today and are we looking at any fines? Thank to the lawyers that have response to my questions these past couple weeks. You have been most helpful. Ann RB


Asked on 5/25/12, 11:47 am

1 Answer from Attorneys
Virginia Prihoda Law Offices of Virginia Prihoda

You are asking questions concerning probate which reveal that you don't fully understand what the probate process is all about (this is not a criticism, but an observation). Probate is a legal court proceeding created to provide a mechanism to transfer property owned by a deceased person in their own name or property or income payable to their estate to be retitled in the name of the surviving heirs or beneficiaries legally entitled to the property. If mom deeded the property to her two sons, then the property belongs to the two sons starting with the day the deed was signed. A deed is a mechanism for transferring interest in real estate from one party to another. The property doesn't belong to mom anymore, so there probably is no need for a probate proceeding. If the quit claim deed was correctly prepared, the deed from mom to the two sons gives the son their interest in the property. They can do with the property what they wish, subject to the claims of any creditors who have a lien interest in the property (mortgagee banks, construction liens, Department of Public Aid, IRS or Illinois tax liens, if any, etc.). And when the sons die, if the property is not sold before that date, the property will pass to their heirs, beneficiaries or surviving joint tenants. The sons would be well advised to get an appointment to talk to a lawyer in their county who specializes in real estate to obtain an opinion as to what their rights and obligations are with respect to the property. The fee they will pay for a consultation will be worth the fortune they will pay in legal fees if they move forward without knowing whether the deed mom signed was legally sufficient to transfer title to the property.

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Answered on 5/25/12, 12:26 pm


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