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Why do I need a lawyer?
If you're selling property, there are documents to be prepared that by law must be prepared by a licensed attorney. If you're buying property, it is probably the largest purchase you've ever made in your life. Who's there to look out for your best interest?
- Not necessarily your Realtor. Remember, your Realtor only gets paid if the transaction closes; therefore, the Realtor's interest lies first and foremost in closing the deal. Your attorney's interest is solely your interest, even if the transaction does not close.
- Not necessarily your lender. Remember, your attorney will explain the loan documents, the good parts as well as the bad. Your attorney is there to make sure the representations made by the loan officer or mortgage banker are in fact the terms incorporated in the final loan documents. If you've never seen the size of most loan packages, you're in for a tremendous shock. Without someone there to help you understand the mountain of paperwork set before you, it is easy to feel helpless and vulnerable.
- And what if something comes up after the closing? Who's there to help you resolve any post-closing problems? Your attorney may be the only one available to help you.
What should I look for when hiring a real estate attorney?
Picking your lawyer can be tricky. Do you ask your Realtor? Do you ask your lender? How about a friend or relative? No matter how or from whom you get the lawyer's name, you must check him or her out personally. If a face to face meeting is not possible, at least a telephone call is advised to establish a feeling of confidence in the attorney you select.
You should determine
- the number of years the attorney has practiced law;
- the average number of transactions handled by the attorney each year;
- the competence of the attorney's support staff;
- the estimated fee to be charged;
- will the attorney personally talk to you or will a subordinate attempt to answer your questions; and
- if possible, the reputation of the attorney in the real estate community.
By getting the attorney to answer these questions, you will be able to create a dialogue with the attorney, with the hope of establishing whether or not you are comfortable relying on that attorney to represent you. It will also establish your ability to talk directly to the attorney in the future.
What is the best way to establish ownership?
In Illinois there are a number of ways to take title; however, it's important your attorney have all the facts in order to advise you as to whether title should be held in Joint Tenancy, Tenants by the Entirety, Tenants in Common, or create a land trust to hold title. How title is held can make a difference in the event one of the joint owners dies; you may be able to avoid probate depending on how title is held at the time of an owner’s death. It might also create an impediment to creditors pursuing assets to satisfy an outstanding debt.
When I die, what will happen to my property?
Most people have heard stories about the nightmares that can result if upon your death, your estate will have to "go through probate". Avoiding probate can be accomplished under most circumstances. Your lawyer can advise you of the steps available to you if avoiding probate is a major concern; however, all of the options should be discussed in detail with your lawyer before making such a decision. Probate is a court proceeding, whereby a hearing is held to determine the Executor (if the decedent had a will) or the Administrator (if the decedent died without a will). All of the decedent's heirs must be notified of the proceeding and have an opportunity to object to the appointment of the Executor or Administrator. The Executor or Administrator then prepares a list of all the assets and all of the liabilities existing at the time of the decedent's death. The heirs then have an opportunity to require an accounting of the decedent's assets and liabilities, and approve all distributions made from the assets of the Estate.
This procedure will take a minimum of six months from the date of the appointment of the Executor or Administrator. This period is the statutory claim period, which allows creditors of the decedent to file claims against the Estate. The extended period of time, the legal documentation required, and the legal fees incurred during the pendency of the probate proceeding, typically cause the heirs to be unhappy and anxious.
Can I protect my property from creditors?
Tenants by the Entirety is a way married couples can gain a measure of protection from creditors while they own their marital home. Certain types of trusts can also be used for this purpose; however, a trust requires careful planning with your attorney.
What happens if I miss a mortgage payment or forget to pay my taxes?
If you fail to make your mortgage payment, your lender has the legal right to file a foreclosure suit; and if you can't resolve the dispute with the lender, the property can be sold by the Sheriff to satisfy the debt. Usually a lender will not file for foreclosure unless you are at least 3 months behind in your payments.
Non-payment of real estate taxes can also result in the loss of your property; however, there are many steps required before that can occur. Even though it may take two years or more for the entire process to run its course, considerable interest and other charges will be added to the origianal tax bill and must be paid to stop a public sale of the property to satisfy the unpaid taxes.
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