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Special Representative General Info

Death of a Party

Under Illinois law, a Court may appoint a "Special Representative" which allows a case to continue even when a party has passed away, and even

when no family member ("heir") or person named in a Will ("executor") has never been appointed an Adminstrator under the Probate Act. Since a

landmark Illinois Supreme Court case ABN v. McGahan, it has been the custom and practice of Illinois Foreclosure Judges to appoint a Special

Representative to allow a Foreclosure case to continue when the mortgagor is dead.

Some important issues with the appointment of a Special Representative in Foreclosure cases:

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Powers of a Special Representative

Since a Special Representative is not a Probate Act appointment, he has no property rights or responsibilities. A Special Representative cannot sell property, or divide property amongst family members. And his legal authority does not extend beyond the specific case to which he was appointed.

Powers of Heirs

Under Illinois law, the closest relatives to a decedent ('heirs") inherit real property the moment a person passes. And if a person takes a Will to Probate Court, and has the Will "Admitted" by a Judge, the property "divests" from the heirs and vests in the person(s) named in the Will. Upon the death of a person, title of real property instantly passes to his heirs, who are now "Owners."

Cook County

A Cook County General Administrative Order in 2016 required a Special Representative to file an Answer to the Foreclosure Complaint. However, without the assistance of family members, the Special Representative does not have access to information that might allow the Answer to be meaningful.

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Other Illinois Counties

In Counties in Illinois other than Cook, the Special Representative does not file an Answer to the Complaint. He files a Report which advises the Court on the possible identity of family members who may have inherited the property. Most Judges require the heirs who now own the property to be made defendants in the case.

Being a Defendant in Foreclosure cases as an heir

As a possible owner of property in foreclosure, most Judges will want to see all possible heirs named as defendants. This way, they have knowledge of what happens to the property they inherit. If the heir did not sign the Note and borrow the money, the bank cannot obtain a Money Judgment against them; the assets of the heir cannot be threatened.