Legal Question in Wills and Trusts in Illinois

My husband and his brother aquirred 60 acres from mother through a quit claim deed in 1995. She waived all her rights to this property. She died in 1998 with nothing in her name so the will she made out in 1993 with this 60 acres supposly giving the brothers the property was never put into probate. She was awarded to the state. My husband's brother was made executor of her estate. Over the past 13 years, my husband has asked his older brother to stettle (divide) the property up countless times inwhich his brother has always refused. We want to get it stettled up and all the lawyers we have asked say the same thing, Why wasn't the will put into probate? Our answer is because my husband was told by his brother that it didn't need to go into probate because she didn't have anything. My husband has no idea what his mother had at the time of her death. Before his mother's death in 1998, his brother and his wife lived in a hole in the floor single trailer and after the mother died, a new double-wide house was put up, a garage, and new farm equipment was brought. On this 60 acres house the building site of a dairy barn, milk house, sheds, and the two houses across from each other. My husband according to the will and his mother's wishes got her house on 1.7 acres. Also in the will, his brother got 1.7 acres for his house. His brother owns the dairy herd which his uses the building for. Even though my husband owns half the 60 acres and building site, he has never got rent or compension since they aquirred it in 1995. The tax bill is in both their names but his bother has the dairy operation he has been paying the property taxes on it. My husband wants to get this stettled. His questions are 1. Did their mother's will have to be in probate even though she didn't have anything? 2. Can his brother claim the property as his because he paid the taxes all this years even though it is in both their names? 3. What are the consequences now if we do put the will into probate? 4. Can we ever stettle the property the it stands now? 5. Can we go back on his brother for back rent or accountabity issues? 6. What claim does my husband have on the property if his brother dies and vise versa and what claim the spouses and heirs have? Thank you Ann RB


Asked on 5/23/12, 4:05 pm

3 Answers from Attorneys
Sanford M. Martin Sanford M. Martin, P.A.

Based on the facts described in your inquiry, their mother's estate was not required

to be administered in probate because she transferred the property to her sons. An

important issue not addressed by you is: does the quitclaim deed transfer the

property to her sons as joint owners with right of survivorship or as tenants in

common. Assuming the transfer was to them as tenants in common, each of

them may sell his share of the property or take legal action to compel the

other party to pay his share of the property expenses, or to partition the

property. If the property is owned as tenants in common, if one of them

dies, he can leave his share by will or trust to his beneficiaries which

then own the share as a tenant in common. Of course, if the deed

states that the 60 acres is transferred to them as joint tenants with

right of survivorship, the survivor would inherit the property.. It does

not appear to be a complicated matter and can be resolved either

by the brothers or by a court. Legal counsel from an attorney with

a full understanding of the facts would be beneficial.

Read more
Answered on 5/23/12, 4:45 pm
Sue Roberts-Kurpis, Esq. Law Office of Sue Roberts-Kurpis

I agree with the above attorney with respect to the filing of a probate action assuming that the mother had no assets when she died. The 60 acres did not belong to their mother at the time she died so anything in the Will related to the division of the property is meaningless and not legally binding on anyone. Brother has been serving his own interests all along and it is necessary for you to talk to a local estate or property attorney regarding filing of a partition suit. I'm not sure that the attorneys you previously consulted understood the facts of the case if they said that you needed to open a probate case. On the other hand, since you main source of information seems to be what the brother is saying and it appears that brother has spent major funds on improvements on the property, you need to ask where those funds came from. Opening a probate estate will allow you to do that.

In the meantime keeping looking for an attorney in your area to handle your case.

Read more
Answered on 5/23/12, 5:08 pm
Virginia Prihoda Law Offices of Virginia Prihoda

I agree with the foregoing replies and caution you to commence action as soon as possible. Since your brother is paying the taxes, and has a title interest in the property, if you sit on your rights, you may find the passage of time further weakening your position with respect to the property.

Read more
Answered on 5/24/12, 8:21 am


Related Questions & Answers

More Probate, Trusts, Wills & Estates questions and answers in Illinois