Real Estate, Probate and the "Chain of Title"

This question was recently asked in Robert J. Bruss' "Realty Q&A" column (the complete column is here):

DEAR BOB: My husband died almost 10 years ago and his name is the only one on the title to our home. His will said I inherited all his assets; we had no children. Now I want to sell my home, but the title insurance company says it can't insure title for my buyer until my husband's estate goes through probate court. A lawyer said this will take at least six months. Is there any way I can sell my home sooner? -- Claudia T.

Mr. Bruss' response is the same as mine would be -- a probate is needed. However, I think it's important to understand why this is the case. When a buyer goes to purchase real estate, or a title insurance company seeks to protect a buyer in the purchase of real estate, the buyer and title insurer will look at the real estate's "chain of title." For instance, the buyer and title insurer might find something like the following for 123 Smith Street, Chicago, Illinois:

6/1/1990: Warranty deed from George Curious to Maisy M. Ouse

9/5/1995: Warranty deed from Maisy M. Ouse to Dora Explora

10/7/2000: Warranty deed from Dora Explora to Thomas Engine

If the buyer is purchasing from Mr. Engine, then there's no question about the chain of title being correct. But what if a woman purporting to be Mr. Engine's widow seeks to sell 123 Smith Street? In that case, the chain of title is unclear, and the buyer and title insurer need to ask themselves whether the widow can "fill in the gap" and show proof of why she is now the owner of the property. The probate process provides this proof -- when the probate estate is opened, a formal document known as a "letter of office" will be issued by the court clerk, and the executor appointed by the court can then take steps to sell the property. In this case, the letter of office acts as the next link in the chain, connecting Thomas Engine to the person buying 123 Smith Street from Mr. Engine's estate.

Two further points:

1. Claudia T. says that an attorney estimated the timeframe for a probate at six months. In Illinois, this wouldn't be the case, at least not in a situation where the decedent died almost 10 years prior to the probate. The six month timeframe in Illinois is necessary to handle any claims against the decedent's estate, but under Illinois law, all claims against an estate are barred unless asserted within two years of the decedent's death. This is the rule even if no probate estate was opened for the decedent immediately after his or her death. So, if (a) a probate court in Illinois found the Will of Claudia T.'s husband to be valid and (b) Claudia T. is named as the sole beneficiary under that Will, then the executor of her husband's estate should be able to sell the property and distribute the proceeds of sale to Claudia T. immediately.

2. Having a complete chain of title is necessary even in the case of joint tenants. Let's take the above example but change it slightly, so that the 10/7/2000 transaction involved a Warranty deed from Dora Explora to Thomas and Ernestine Engine as joint tenants. What happens if Mr. Engine then dies? Mrs. Engine becomes the sole owner of the property, but if she wishes to sell the property, the buyer and title insurer will ask for Mr. Engine's signature on the deed as well (which Mrs. Engine obviously can't provide). However, Mrs. Engine can establish the necessary linkage by recording a "Deceased Joint Tenant Affidavit" with the county recorder's office -- this is a sworn statement by Mrs. Engine (with Mr. Engine's death certificate attached) stating that Mr. Engine predeceased her, and that she is now the sole owner of the property.