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updated: 10/23/2010 11:11 AM

Where does wife stand with house and no will?

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Q. My husband died recently and I just learned that I am not on the deed for the house we lived in the past 22 years. Also, my husband did not have a will. He has two children from a prior marriage with whom I barely have a relationship.

I have now learned from another relative that these children believe the house I am living in is theirs and they are planning to tell me to move out so they can sell it. I have received much conflicting advice from friends and I thought maybe I should get some advice from a lawyer. So, am I moving out?

A. This is more of a probate issue than a real estate issue, but I'll try to address your question. When someone dies, property that is not owned in joint tenancy with another is passed either through the provisions of the decedent's will or, if no will, through the provisions of Section 2-1 of the Illinois Probate Act. The act provides that the intestate (without a will) real and personal estate of a resident decedent, and the intestate real estate located in this state of a nonresident decedent, is distributed as follows:

If there is a surviving spouse and children, half to the surviving spouse and half to the children per stirpes (meaning the children divide their among them);

If there is a spouse but no kids, all to the spouse. If there are kids but no spouse, all to the kids in equal shares.

In there are no spouse or children, the law goes on to describe additional classes (brothers, parents, cousins, etc.) and their priority in the distribution of the estate.

In your case, we have a surviving spouse, children and no will. Accordingly, your husband's estate is divided half to you and half to his children.

If the house is the estate's only asset and you are correct in your statement that you are not in title, half of the value of the house belongs to his children. You would either have to come to some resolution with them as to how they would receive their share or they could probably force you to sell or refinance the property to obtain their share. If your husband owned other assets that were not owned in joint tenancy with you, those assets could be used to satisfy their half share. If you wish to stay, you would need to create a plan to address the children's interest, though I think most judges would be sympathetic to your position (22 years in the home and not in title) and would probably try to assist you in finding a way to stay in the property if that was your desire.

By the way, before you do anything, make absolutely sure you are not on the title to the house; if you are on the title, the property is most likely owned in joint tenancy, in which case the house passes to you in full as the surviving joint tenant. The children would have no interest in the house.

Q. I ordered some windows for my mother to be installed at her house. When the windows were delivered, my mother rejected them saying they were not what she wanted. The windows were put back on the truck and a couple days later were delivered to my house while no one was home.

I called the company the next day and told them to please pick up their windows. They refused, said they were custom windows, that I ordered them and I had to pay for them. They also said if I don't pay for them, they will put a lien on both my and my mother's house. Can they do this?

A. I would immediately write a letter to the window company (send it by certified mail or overnight delivery) indicating the windows were not what you ordered and to please pick the windows up from your property.

It's pretty clear they could not record a lien against your property as the windows were ordered for your mom's place. I don't believe they could legally record a lien against your mom's property either, though not having a legal basis to record a lien hasn't stopped many parties from recording liens anyway. Generally, the contractor has to establish he has effectuated an improvement to the property, either through the installation of materials or the performance of services, to establish the basis to record a lien. It would not appear your window company would qualify.

The window company may, however, have a claim for breach of contract against you. I would suggest speaking to an attorney regarding how you should proceed.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.

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