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Siblings likely headed to court if mom dies without a will

Q. My mom died a few months ago and didn't have a will. She always told me and my brother that we would get her house when she died. My dad passed away a few years ago. Me and my brother were her only two children.

We now want to sell the house. We have been told we will need to open a probate estate that will cost at least $2,500. Not only don't we have $2,500 but it seems ridiculous that we would need to spend that much just to be able to sell the house.

Do you have any other ideas on how we could sell the house without opening up a probate estate? The house is in Cook County.

A. Up to the fairly recent past, in situations where the party in title died without a will (also known as dying intestate), most title companies would accept an Affidavit of Heirship from an heir in lieu of opening an estate. The affidavit would describe the heirship of the decedent, indicating the decedent's marital status and all children born or adopted by the decedent.

If it was reasonably clear from the affidavit that certain parties were entitled to the decedent's estate, the title company would insure the transaction, which is necessary to convey title.

Unfortunately, most title companies no longer accept a simple affidavit as sufficient proof of heirship. Fortunately, there is a mechanism that allows heirs to obtain an Order of Heirship from the court, which most title companies will accept in lieu of opening an estate.

Section 12.2(b) of the Rules of the Circuit Court of Cook County dictate how one may obtain an Order of Heirship from the court. A petition is filed with the clerk and a hearing date is set. At the hearing, the petitioner, an heir of the decedent, presents an Affidavit of Heirship to the court, describing the heirship of the decedent. In the event the court agrees with the petitioner as to who the legal heirs of the decedent are, the court will issue an Order of Heirship, indicating the legal heirs of the decedent. This is a far simpler process than opening an estate.

With this Order of Heirship, most title companies will insure the conveyance of the property to you and your brother. I presume the outlying counties have similar provisions for these situations.

Q. I rented a small commercial space about a year and a half ago. The lease was for two years. The tenant was my company and on the advice of an attorney friend, I signed the lease by signing my name as president of my company.

I could no longer afford the rent and about three months ago stopped paying rent and moved out. I received letters from the owner demanding four months rent to legally end the lease but I did not have that to give him. I told him to keep my security deposit but apparently that wasn't enough.

He has now filed a lawsuit against me and I was just served by the sheriff. The lawsuit names as defendants my company and me individually.

My question is: Can he sue me individually if I signed the lease as president of my company? The tenant on the lease is my company and I signed the lease as president.

A. Of course, you would want to have an attorney review the lease. However, based on the above facts, it would appear there was no basis to name you individually. I am presuming you did not sign a personal guaranty of the lease.

You or your attorney should file a motion to dismiss you as a party defendant. The lawsuit would continue against your company. Based on your facts, absent a settlement between your company and the landlord, a judgment would likely be entered.

In the event a judgment against your company is entered, be aware of a legal proceeding whereby the plaintiff may request the court "pierce the corporate veil" and find you personally liable for any judgment amount. As a general rule, this can only be successful when the basic rules of creating and maintaining a corporation are not followed. These rules include, but are not limited to, maintaining proper corporate records, conducting mandatory shareholder meetings and maintaining separate bank accounts for the corporation.

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

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