Hey kids, if the house is in a trust, it’s not an estate asset
Q. My mother recently passed away. My dad passed away years ago. They owned a house for many years. She also had a living trust. The living trust says the house goes to me. My siblings want to sell the house and split the money three ways, as they claim the inheritance laws say that all the children divide the assets equally. How do we determine where the money from the house goes?
A. The “inheritance laws” your siblings are referring too are likely the provisions of the Probate Act, which dictate how assets are disbursed in the event a person dies intestate, meaning without a will. The Act provides that first in line are children and spouses. If the decedent had children and a spouse, half the estate assets go to the children and half to the spouse. If there are children and no spouse, all estate assets go to the children, which sounds like your situation.
However, this only applies to estate assets. In the event your mom transferred the house from herself, individually, to her personal trust, the trust now owns that asset and it is no longer an estate asset. The intestate rules no longer apply to the house. The provisions of the trust dictate who owns the house.
To determine whether or not the house was conveyed into the trust, one must visit the county recorder for the county where the property is located. There, you can usually determine all reasonably recent transactions that occurred regarding a certain property. Have the Permanent Index Number (PIN) handy when you visit the recorder’s site.
If the property was conveyed into mom’s personal trust, you will find an indication on the recorder’s website indicating a Grantor (mom) and a Grantee (mom’s trust). If you see this, the property was likely transferred into her trust. To thoroughly and properly examine this however, you must obtain a copy of the Deed conveying the property into the trust and a copy of mom’s trust agreement. It would be beneficial to all of you to have a real estate attorney review these documents for you to determine that the property was properly conveyed into her trust.
Q. I am a tenant at a commercial property. The original lease ran through 1998, with an option through the end of 2023. I took the option and remained a tenant through 2023.
As 2024 started, I waited to see what my landlord wanted to do. I never heard from him. I remained at the property, continued to pay what I was paying in 2023 and the checks kept getting cashed.
The landlord has now contacted me and claims I am a “holdover tenant” per the terms of the lease. He wants me to pay 150% of the 2023 rent for all of 2024 or sign a new five-year extension. I am not sure I want to work that long so signing a new five-year extension is not an option for me.
What are my options? Can he sue me for the difference between the rent I have paid in 2024 and 150% of the rent amount? Can he have me evicted?
A. Without reviewing your lease, my response will be general thoughts based on what you have described. For anyone to offer you a thorough opinion on this matter, the lease would need to be reviewed.
The fact that the landlord accepted rent checks from January 2024 through October 2024 would be, in my opinion, good evidence that the landlord has agreed to a month-to-month tenancy at the 2023 rent figure. A month-to-month tenancy may be terminated by either party upon 30 days written notice to the other party. The landlord may also raise the rent upon 30 days written notice. These notices, when tendered during any given month, become effective on the final day of the following month.
So, can he have you evicted? Well, he can terminate the lease and if you don’t leave, yes, he can have you evicted. The only way to protect yourself from that occurrence would be to sign another lease.
Can he sue you for the difference between 2023 rent and 150% of 2023 rent? Well, anyone can sue anyone else for anything, however, in my opinion, a lawsuit based on what you describe would likely fail. I don’t believe he can legally raise the rent absent the above described notice.
• 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.