You may have heard of the various uses of quitclaim deeds in Illinois and believe you are in need of one. Your next question may be “Do I need a lawyer to prepare and file this deed?” While you don’t necessarily NEED a lawyer to prepare the deed, there are several reasons why you should engage a lawyer to assist with any property transfer, including transfer by quitclaim deed.
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Here are some important questions that a lawyer can help resolve when preparing and recording your quitclaim deed.
1. What type of tenancy should you create in your Quitclaim Deed?
Whenever multiple people own a property together, there are various ways in which they can hold their ownership interests. Referred to as the ’tenancy,’ the method in which the owners receive their ownership interest will impact their rights in the future.
The most common ‘tenancies’ are: tenancy in common, joint tenancy and tenancy by the entirety. Each of these tenancy types offer distinct rights to the owners and their descendants. Here is a brief description of each:
Tenancy in Common
In a tenancy in common, each owner has the right to a share of the property, including all profits and losses on it. (However, each tenant is generally responsible for any mortgage debt and all tax obligations).
While each owner can be assigned a specific percentage ownership, the presumption is that each co-owner gets an equal share (unless the ownership percentages are specified in the deed). If one owner dies, his or her share passes to his or her estate rather than passing to the surviving co-owner.
Joint Tenancy
In a joint tenancy, the property is owned equally by each person on title. When any owner dies, their interest passes to the surviving co-owners automatically with no other action required.
Tenancy by the Entirety
Tenancy by the entirety is a special type of joint tenancy reserved for married couples and couples in a civil union (for a principal residence only). This is essentially a joint tenancy with one significant advantage:
As long as the owners remain in their relationship and maintain the property as their principal residence, creditors of one spouse cannot force the sale or transfer of the property to collect a debt. (There are some exceptions, such as federal or state tax liens, joint debts, and certain fraudulent transfers.)
As you can see, determining what type of tenancy to use in your quitclaim deed is an important question that can have serious implications. An experienced lawyer can help you choose the most appropriate option.
2. Who should the grantor and grantee be in a quitclaim deed?
The determination of who should be listed as grantor and grantee on a quitclaim deed is not always obvious.
Here’s a quick example to illustrate: Let’s say you are the sole owner of a house and you recently got married. You would like to add your wife to the property title. You might think that you, as grantee, just have to deed a 50% interest in the house to “your wife,” as grantor. While that transfer would be effective, it would result in you and your wife holding the property as tenants in common, a form of ownership that does not afford the protections of tenancy by the entirety, which you are entitled to as a married couple.
Moreover, in the event that one of you dies, their share would pass to his or her descendants, rather than to the surviving spouse. In order to create a tenancy by the entirety, you would have to deed the entire property, as grantor, to you and your spouse, as grantees, listing the tenancy that you wish to create.
Because the rules around property transfer and tenancy can be very technical, as the above example demonstrates, it is highly advised that you obtain the counsel of an attorney to ensure that your quitclaim deed achieves your objectives.
3. What are the state and municipal requirements to record a quitclaim deed?
You may want a lawyer involved in your quitclaim deed preparation and filing to assist with the various state, county and municipal requirements that must be satisfied in order to record your deed. In Illinois, even if your transfer is exempt from transfer taxes, a MyDec tax form must be completed and exempt stamps issued in order to record your deed.
Cook County also requires a special affidavit called a Grantor/Grantee statement, which must be signed and notarized before the county will accept your recording. Individual municipalities have varying requirements, such as the City of Chicago water department Full Payment Certificate (FPC) requirement. Similarly, many cities and villages have their own unique requirements that must be satisfied before they will issue a stamp needed to record the deed.
Having a lawyer on board who is familiar with all the state, county and local requirements can save a lot of heartache that one can encounter in trying to navigate this process on their own.
4. How (and where) do I record a quitclaim deed?
A quitclaim deed is recorded in the county recorder’s office of the county in which the property is located. Before recording, however, you must ensure that all state, county and municipal requirements have been met or the recorder will reject the recording. It is quite common for an individual to travel to the recorder’s office and wait in line for a considerable amount of time, only to find out that they failed to apply for their village transfer stamp.
Hiring a knowledgeable attorney to assist with your deed preparation and filing can alleviate all of this aggravation. As an added benefit, many attorneys have access to the county e-filing system, so the deed can be recorded right from the attorney’s office, saving you the hassle of traveling to the recorder’s office to file in person.
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To Conclude
As you can see, while preparing and recording a quitclaim deed may appear to be simple, there are many factors and considerations which may require the input of a lawyer to ensure that you are achieving all of your objectives. From ensuring that you are using the correct tenancy, listing the correct grantor(s) and grantee(s), fulfilling all state, county and municipal requirements, and are filing in the most efficient way possible, it is highly advisable to have a lawyer assist with your quitclaim deed preparation and recording.
