Missing sister entitled to half of home sale proceeds
Q: My dad passed away some time ago and my mom just recently passed. They owned their home for more than 40 years. They had two children, me and my sister. Mom had a will naming my sister as the executor and giving all her property to my sister and I equally.
My sister moved away about eight years ago and no one has seen or heard from her since. I have absolutely no idea where to even start looking for her.
I am told I would need to go to court to get the authority to sell the house. I am hesitant as my sister is the executor named in mom's will. Will I need to somehow find my sister if I ever wish to sell this house?
A: No, though given the facts you have provided, I agree it is likely you will need to open an estate to obtain authority to sell the property.
Often, folks in your situation (deceased parents, two children, no other heirs or legatees) can pay an additional premium to a title company to have them insure a sale upon the signatures of the heirs. This can often be accomplished without opening an estate. However, in your situation, you have an heir and legatee who will likely not be participating in the sale. A legatee is a party named in a will to receive property.
Although you are not the named executor, you can still file a petition to open an estate in mom's name. This is called a Petition With the Will Annexed. You will be required to take certain steps in an attempt to locate your sister.
In the event you cannot locate her, I believe the court would grant you authority to sell the property, pay applicable final expenses for mom and pay any of mom's outstanding bills. Whatever is left from the house sale would then be held in an estate account pending the six-month claim period. Once the claim period has run and no claims are filed against the estate, I believe the court would allow you to take your half of the remaining proceeds. You would further be required to hold your sister's half for the foreseeable future.
Two common ways to avoid this type of situation is for the property owner to convey the property into a personal or land trust or to execute a TODI (Transfer on Death Instrument). Speak to a real estate attorney about these options.
I would suggest contacting an attorney familiar with probate and real estate law to determine the best course of action.
Q: I had a tenant who was always paying late and then, for the past couple months, stopped paying rent altogether. I finally served him a five-day notice to end the lease and have him evicted.
The woman who lives next door to the property is a friend of mine. She called me yesterday to tell me he moved out. I went to the property and it does appear he has moved out.
Now what? I can't sue him for eviction as he has already left. He owes me over $4,000 and I don't have a security deposit. He has a pretty good job and could probably afford to pay me what he owes me. How do I go about collecting what he owes me?
A: You sue him for breach of contract in the small claims court of the county the property is located in. Most local county's circuit court websites offer assistance on how to file a small claims complaint, complete with forms. You will need to have him served with the complaint so you will need either a home or work address for him. The Illinois Supreme Court also has a website with approved state forms and instructions. The Circuit Court clerks are also available to assist you.
• 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.