After mother's death, family wants brother to vacate her house

By Tom resnick

Q: My brother has been living with (and sponging off) my mother for the past 15 years. Mom recently passed away. As far as we know, she did not have a will. My dad passed shortly after my brother moved in. We also have two sisters.

The house is paid off and is located in a very nice town. Both my sisters could use the money from selling the house. My brother refuses, saying he can stay as long as he wants because of the fact that he has lived there so long.

We would prefer not to go to war with my brother, but something needs to get done. It also appears he has not paid the last real estate tax bill and we have no idea what is going on with insurance. Any help on how we can get this house sold would be appreciated.

A: Mom died without a will, husband predeceased and mom had four children. Based on these facts, the state's intestacy statute (I am presuming the property is in Illinois) provides that the four of you are equal owners of the property. One possible exception would be if mom, or mom and dad, recorded a TODI (transfer on death instrument), which generally would specifically convey the property upon the last of your parents to die. This can be checked by reviewing the property records at your county recorder's office.

Presuming no TODI, a couple options. The four of you could determine a fair market rental for the house and the brother residing at the property could pay each of you, monthly, 25% of the fair market rental value. The four of you would split the taxes, insurance and major repairs and brother would be responsible for routine maintenance and repair. My guess, however, would be that after paying nothing for 15 years, the brother will not be excited about this arrangement.

Presuming he refuses to enter into a rental agreement, your choices would be let him remain without contributing to costs and expenses or file a partition lawsuit. A partition lawsuit would allege that the four of you own the property, you wish to sell and divide the proceeds and one of the owners will not cooperate. Absent facts I am not aware of, it is likely a court will order the sale and the division of the proceeds.

Before you do anything, determine the status of real estate taxes and insurance. If the house burns down without it being insured, the four of you would now own a lot, worth far less than what you have now. If you determine it is not insured, get it insured immediately, with or without brother's cooperation. You can work out the financial details later. Same with the real estate taxes. You can actually lose the property by failing to pay real estate taxes.

Speak to a real estate attorney, now, to determine the best course of action.

Q: I just received a letter in the mail asking me if I knew where the deed to my house was. The letter stated a copy of my deed could be sent to me for a payment of $89.95. My wife and I purchased our house in 1976 and I do not have a copy of my deed. Does this mean I will have problems selling my house? Should I pay the $89.95 to get a copy of my deed?

A: Not having a copy of your deed will have no impact on selling your home. No, don't send anyone any money to obtain a copy of your deed.

Illinois is what is known as a recording state. This means the ownership of your home is recognized through recordings made at your county recorder's office, not by a piece of paper you may or may not possess.

When you purchased your property, the seller gave you a deed. That deed was recorded at your county recorder's office. Once that occurred, nothing would impact your ownership of this property until another deed was recorded, transferring ownership from you to another party.

The letter you received is a business tactic that has been around for some time. If you wish to obtain a copy of your deed, contact your county recorder. There are a few options available to obtain a copy, all for far less than $89.95.

• Send your questions to attorney Tom Resnick, 910 E. Oak St., Lake in the Hills, IL 60156, by email to or call (847) 359-8983.

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