Post-mortem transfer of title to vehicle in decedent's sole name.

Full Question:

Father past away and mother wants to sell dad's car. What would we need to transfer title of car to the buyer. Title is in dad's name only ?
06/05/2009   |   Category: Personal Property   |   State: Illinois   |   #16874

Answer:

In Illinois, the office of Secretary of State is responsible for registering title to motor vehicles. Many states have of form of "Affidavit of Heirship" specifically for motor vehicles. I was unable to find such a form for Illinion, but if you will please go online to "http://www.cyberdriveillinois.com/departments/vehicles/eregtitle.html," then your mother should be able transfer the title to your father's car to herself. Again, most states have an administrative procedure for transferring title to a motor vehicle to a decedent's spouse or heir without the need for a probate proceeding just for the car itself.

AFFIDAVITS:

Affidavits: Law & Legal Definition.
An affidavit is statement of facts which is sworn to (or affirmed) before an officer who has authority to administer an oath (e.g. a notary public). The person making the signed statement (affiant) takes an oath that the contents are, to the best of their knowledge, true. It is also signed by a notary or some other judicial officer that can administer oaths, affirming that the person signing the affidavit was under oath when doing so. These documents are valuable to presenting evidence in court when a witness is unavailable to testify in person. Affidavits may preserve the testimony of persons who are unable to appear in court due to illness, incarceration, moving out-of-state, death, etc. Judges frequently accept an affidavit instead of the testimony of the witness and are used in place of live testimony in many circumstances (for example, when a motion is filed, a supporting affidavit may be filed with it).

An affidavit generally consists of statements of fact regarding the issue at hand, with a section at the bottom for the affiant to swear to to truth of the statements made and affix his/her signature, which is then notarized in a jurat. A jurat is the bottom part of an affidavit where the officer certifies that the document was "sworn" before him. Jurat notarizations are required for transactions where the signer must attest to the content of the document, such as all affidavits and pleadings in court. It is a certification on an affidavit declaring when, where and before whom it was sworn.

In executing a jurat, a notary guarantees that the signer personally appeared before the notary, was given an oath or affirmation by the notary attesting to the truthfulness of the document, and signed the document in the notary's presence. It is always important that the notary positively identify a signer for a jurat, as s/he is certifying that the signer attested to the truthfulness of the document contents under penalty of perjury. However, jurat notarizations do not prove a document is true, legal, valid or enforceable.

MOTOR VEHICLES:

Title Transfers and Liens.
Under the UCC (Article 2), a new car contract which purports to transfer ownership to the purchaser must be in writing. It should include a description of the make and model of the vehicle, its full vehicle identification number (VIN), a statement as to whether the vehicle is new, used, a "demo," rental car, etc., the full price and any financing terms, a cancellation provision if certain conditions occur (such as the car not being delivered by a certain date), and a full statement of warranty terms.

Every transfer of title to a motor vehicle must include an odometer reading and statement of mileage from the transferor. For purposes of taxation, most states require an affidavit of purchase price as well.

Importantly, if the purchased vehicles are being financed, state law will dictate the form of title transfer. Some states will allow title to transfer to the buyers even though they have not yet fully paid for the vehicle, but the creditor/lender will encumber the title with a lien. Other states permit the creditor/lender to keep title in its name until they pay for the vehicle in total, then transfer title to them. In those states, the buyers maintain an "equitable lien" on the vehicle while it is being paid for but do not have legal title to it until their final payment has been made.

Under the UCC, after executing a purchase document, but prior to the delivery of the vehicle, the risk of loss or damage to the vehicle is allocated to the seller if the seller is a merchant (car dealer). If the seller is not a merchant under the UCC, the risk passes to the buyer upon tender of delivery, i.e., when the seller actually attempts delivery or makes the car available for pickup under the contract.

Generally, title to a vehicle cannot be transferred if there is any existing lien listed. Creditors will automatically file the necessary paperwork (buyers should receive a copy) to remove their liens against the title to their vehicles once buyers have paid them creditors in full. However, if buyers attempt to sell their vehicles while a lien is still recorded, the burden is on them to contact the necessary parties to effect a removal of the lien.

State Registration Requirements.
Registering a vehicle in the owner's name notifies the state of ownership of the vehicle, and provides the necessary documentation for the issuance of state license plates and tags to be affixed to the vehicle. Operating a motor vehicle that is not properly registered is usually an offense punishable by fine or imprisonment. Within most states, the Department of Motor Vehicles (DMV) or an office of the Secretary of State is the proper entity for registering vehicles.

The most common document requirements for registering a vehicle are the title and a certificate of automobile insurance coverage. Some states additionally require a copy of the contract or bill of sale, or in the alternative, an affidavit containing averments of purchase price, description of the vehicle, and the VIN number, names of seller and buyer, date of purchase, and odometer reading.

The title owner of the vehicle is generally, but not always, the party to whom the vehicle is registered. Even in states where creditors retain titles in their names until the buyer pays off the auto loan, registration of the vehicle will nonetheless be in the buyer's name. This means that the buyer will pay the sales taxes, use taxes, licensing plate fees, and (usually) fees associated with the transferring of the vehicle to the buyer's name.

If the buyer has a lien against the title to the buyer's vehicle, the state will most likely require the buyer to maintain full coverage insurance on the car, including, especially, collision coverage. Doing so protects the interests of the lienholder, who could stand to lose both payment and the vehicle if the buyer is involved in an accident and does not have the vehicle insured. Registration may be denied if the vehicle fails to pass auto emissions or operational testing, or if any taxes are pending. Additionally, registration may be denied to persons whose driving licenses have been suspended or revoked.

ILLINOIS MOTOR VEHICLE RECORDS DIVISION:

How do I request information on vehicle titles and registrations?
Complete a Secretary of State Information Request Form or contact:
Secretary of State
Record Inquiry Section
501 S. Second St., Rm. 408
Springfield, IL 62756
217-785-3000

How much does vehicle information cost?
Title search - $5.00
Registration search - $5.00
Title & Registration - $10.00
Certified for Court $10.00.

The last link in this response is a link to the US Legal Forms website, where you may obtain a form of affidavit of heirship for use in Illinois to tranfer title to a vehicle from the decedent to one of several heirs.

Please see the information at the following links:
http://www.cyberdriveillinois.com/departments/vehicles/eregtitle.html
http://www.cyberdriveillinois.com/departments/vehicles/home.html