Trustee of parents' estate nowhere to be found

Q. My parents owned their home for over 35 years. My dad passed away a couple years ago and my mom just passed away recently. I am trying to figure out what to do with their house.

They put the house in a living trust and named themselves as trustees. The trust states if they are unable or unwilling to act or in the event of their passing, my sister would become the successor trustee. The trust also states that me and my sister shall equally share in the ownership of the house upon their passing.

The only problem with this is no one has seen or heard from my sister in more than five years. She was always battling with me and my parents and finally told us she was moving somewhere south. I don't know anyone who knows where she is and I have no idea of how to get a hold of her.

I would like to sell the house, take my half and put my sister's half in an account for her when she (hopefully) reappears. What do I do this?

A. Many, if not most, trusts contain a provision that would provide for a corporate trustee in the event no named trustee was available to act. If this trust contains such a provision, visit your local bank and ask them if they would be willing to accept this duty. Once the bank becomes trustee, they would have the power to take the action you seek.

In the event there is no provision in the trust for naming a successor trustee, the Trusts and Trustees Act (presuming the property is in Illinois) would control when no named trustee is available. Section 5/13 of the act (760 ILCS 5/13) provides:

"If there is no remaining trustee, a successor trustee may be appointed by a majority in interest of the beneficiaries then entitled to receive the income from the trust estate or, if the interests of the income beneficiaries are indefinite, by a majority in number of the beneficiaries then eligible to have the benefit of the income of the trust estate, by an instrument in writing delivered to the successor, who shall become a successor trustee upon written acceptance of the appointment … "

It would appear you, by retaining a 50 percent interest in the trust proceeds, would have the power to nominate yourself as the successor trustee. Of course, 50 percent does not constitute a "majority," but under the circumstances, I believe you would be acting appropriately.

You will need to make a strong attempt to locate your sister first. If you have absolutely no idea where to start, I might suggest hiring a private investigator. If your appointment is ever questioned, you want to be able to establish that you took every reasonable effort to locate your sister. Also, should you ultimately sell the house, make sure you protect your sister's interest.

I strongly suggest you seek the counsel of an estate/trust attorney before taking any action in this matter.

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