Conflicting documents keep siblings at odds over mother's house
Q: My mother passed away a short time ago. She had been sick for some time and I moved into her home to care for her. She was quite disabled and I had to quit my job to do this.
She had promised me for some time I would get her house when she passed. About a year ago, she contacted an attorney who prepared a document stating that upon her death, I would receive the house. I have three siblings who were aware of this and, up to now, everyone seemed OK with this.
Last week, my brother called me to tell me that this "Transfer on Death" document is no good. According to him, my mom's property was in a trust and my document was signed by mom personally, not as trustee of her trust. He also said the trust agreement, which left the house to all of us equally, took precedent over the Transfer on Death document.
All my siblings are married and doing quite well. I am a single mom who hasn't worked for some time due to caring for mom. I am not close with my siblings but the feeling I am getting is they all want money from their one-quarter share of the house if they can get it.
Any thoughts on how I should proceed?
A: Yes, immediately locate an experienced real estate attorney, schedule an appointment and bring all the relevant documents to him/her. These documents would include a copy of the recorded Transfer on Death Instrument (also known as a TODI), a copy of her trust agreement and her will, if she had one.
There are a number of legal issues here, but it would appear to me the trust agreement would take precedence over the Transfer on Death Instrument, presuming the trust agreement predated the TODI. What probably should have been done was amend the trust agreement to convey the house to you upon her death. Sounds to me she may have forgotten she transferred the property into her trust, though I would confirm that the property was, in fact, transferred into the trust.
You can review the county records for this property at the county recorder's website to confirm the property was conveyed into the trust. You could also call the county recorder. Make sure you have the Property Index Number (PIN) handy for the property. This number can be found on the real estate tax bill for the house.
Q: I had a friend who I loaned money to over the years. He was a good guy and I never doubted he would pay me back. He owned a nice home with no mortgage and he kept saying when he sold the house, he would pay me back. Of course, I never got anything in writing from him, but I do have copies of many of the checks I wrote to him.
He passed away suddenly last month. He has one brother who I know and who I have been trying to get hold of, but he does not appear to be anxious to talk to me. He is aware I have loaned his brother money over the years. I am guessing he is afraid I will be looking to be paid back through the sale of the house. His brother is his only living family member and I presume he will inherit the house.
Anything I can do to try and recover the money I loaned to this guy?
A: Yes, you can file a claim against his estate. Now, depending on how the house was titled, his brother may not be required to open an estate. However, this does not prevent you from opening an estate in your friend's name as a creditor.
You could then file your claim, though given the absence of any acknowledgment by your friend that these transfers of money to him were loans, his brother will likely argue these money transfers were gifts between friends.
Speak to an attorney familiar with probate law to evaluate your chances of prevailing on a claim against your friend's estate. There will be filing fees to open the estate and attorneys fees to argue the claim, so make sure you at least have a reasonable chance of prevailing before moving forward.
• Send your questions to attorney Tom Resnick, 910 E. Oak St., Lake in the Hills, IL 60156, by email to tom@thomasresnicklaw.com or call (847) 359-8983.