Living trust appoints a successor trustee to handle property

Q. My aunt died a few weeks ago. She lived in her home for more than 40 years. Her husband died before her, and she has no children. She had one sibling, my mom, who is also dead. Her only family is me and my two brothers.

We want to sell her house but have now found out that her house was in a living trust. What does that mean? Does that mean we cannot sell the house? My brothers and I presumed we would split what we got for the house. Does that change because of the living trust? We talked to one attorney but he was not very helpful. There must be some way to sell the house.

A. It appears that at some point in her life, your aunt conveyed her property into a living trust. The trust is evidenced by a living trust agreement.

Someone probably has the original agreement and it is possible there are also copies. Did your aunt have an attorney? If so, that would be the place to start. If he or she prepared the trust agreement, he or she probably retained a copy.

If you cannot locate her attorney, speak to her close friends or neighbors. They might provide some insight into either who her attorney was or where a copy of the agreement may be located.

If you have not already done so, search the house. Find where she keeps her important papers. There may be a copy there.

Where did she bank? Go there and ask if she had a safe-deposit box. The trust agreement could be there, though you would probably need to open an estate to be able to access the box.

Once you find the trust agreement, you will find a successor trustee has been named who would take control over the trust assets in the event of the death or incapacitation of the original trustee, your aunt. That person would have the power to enter into a contract and complete the sale of the property. The proceeds would be disbursed pursuant to the terms of the trust agreement.

My husband and I have discussed constructing a rather large play area in our back yard. We were told we need a permit so we went to the village hall to obtain one. We then learned there is a 40-foot drainage easement in our yard and we cannot place the play area where we would like.

Is there a way to change or eliminate this easement? What is an easement? No one told us about this when we bought the house. Is it possible this easement was placed on our property after we bought it?

A. An easement is an interest held by one party in property that is owned by another that entitles its holder to a specific limited use. The classic example is a utility easement, which grants a utility company the use of a portion of a property owner's land to run and maintain its lines. Easements are generally granted at the time a subdivision is created and are conveyed by the owner of the property.

The easement was almost certainly present when you purchased your home. If you look at either your owners title policy or the survey you obtained at your closing, the easement will be indicated.

It is extremely unlikely you will be able to modify or eliminate the easement. A 40-foot easement is probably a drainage easement, which not only runs across your property, but runs across the properties on either side of you. It was created to allow for the proper flow of stormwater. Owners building permanent structures within the easement could interfere with the drainage that was engineered at the time the subdivision was created. You will probably need to relocate the play area.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine IL 60067, e-mail tdr100@hotmail.com or call (847) 359-8983.