Proceed cautiously when lawyers reach out after closing
Q. I sold my condo a few months ago. All went well with the closing until I received a letter from the lawyer representing my buyer. The letter stated that a major roof leak has developed in the building, the board has decided a new roof will be required and a special assessment for an undetermined amount will be assessed.
There was never a roof leak while I owned the unit nor was there ever any discussion that I was aware of regarding replacing the roof. The letter accuses me of being aware of this situation and failing to disclose the roof condition to the buyer. The letter goes on to say the buyer is holding me responsible for the cost of the special assessment.
Not sure if I need to get a lawyer or if I should respond on my own. I don’t want to say or do anything that may cost me in the future. How would you advise I proceed?
A. Like any matter involving attorneys, proceed cautiously. You could respond to the correspondence by simply stating what you have stated above. To support your position, you could attach the last six months monthly board minutes, though it is possible the buyer’s attorney received those minutes as part of the initial condominium disclosure. Presuming no mention of this situation up through the month you closed, that would constitute a pretty compelling argument that the situation arose subsequent to your closing. It is highly unlikely a major expenditure such as a new roof would not have been discussed at one or more monthly board meetings and memorialized in the monthly minutes.
If, upon forwarding your response and the minutes, the attorney continues to maintain that you have an obligation to the buyer, stop corresponding and speak to an attorney familiar with these types of proceedings.
Q. A friend of mine recently passed away. His only significant asset was his paid-off house. He has two children, ages 21 and 17. He did not have a will or trust. The children’s mother passed away a few years ago.
The children need to sell the house to support themselves. I plan on helping them with decision making, however, I am concerned how we handle the sale of the house, given the age of the younger child. Any thoughts would be appreciated.
A. When a person dies without any written direction as to how to pass his or her assets, the state where the decedent resided dictates how those assets will be passed. In Illinois, the first class to consider is spouses and children. If the decedent had a spouse and children, half goes to the spouse and half to the kids. If there is a spouse and no kids, all to the spouse. If there are kids and no spouse, all to the kids. If there is no spouse or children, we move on to the next class, which is siblings and parents.
Given your description of the family, it would appear the decedent’s assets pass to his children in equal shares, presuming the decedent did not have any other children and was not married at the time of his death. However, as you have recognized, there is a problem with the 17-year-old receiving funds from the sale of the house.
Better estate planning would have provided in a trust or other planning document that in the event an interest in the house passed to any child prior to reaching majority, a trust would be established allowing the minor child’s interest to pass into the trust and naming a trustee who would control the minor’s share until a specific age.
As this appears not to have occurred, you have two choices. One, file a Petition for Guardianship of a Minor in the county where the children reside. This Petition may be filed by a family member or any interested party. Notice must be sent to all interested parties, meaning if you filed the Petition, notice would be required to be given to the children. A hearing then occurs to determine if the Petitioner is the appropriate party to become guardian of the estate and/or person of the minor. Of course, there are costs involved with these proceedings, somewhat minor costs if the parties handle this on their own. More expensive, of course, if an attorney is retained.
The second choice would be to not do anything until the minor child turns 18. At that point, the minor is legally competent to execute contracts, sign sale documents and receive sale proceeds. Advantage is no guardianship costs. Disadvantage is turning a bunch of money over to someone who likely is not prepared to manage it properly.
My suggestion would be to contact a local attorney familiar with these types of proceedings and obtain professional advice. Bring the kids along. They are old enough to participate in the decision making and, after all, it’s their money.
• 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.