Expert: Timmy Chou - 8/11/2004

Question
On September 1st, 2002 my father passed away leaving behind 2 properties that he had full ownership over. My brother and I made the mistake of appointing our half-sister as executor of the estate. I have never recieved any documents from her in regards to any of the legal proceedings or sale of one of the buildings, nor reciepts of the distribution of the final estate monies. The other building in Chicago is owned by all three of us equally and I have the papers to prove it. She is living in 2 of the 6 available apartments in the building. My brother and I are supposed to be recieving 1/3 of the income. I have recieved 3 of the monthly payments out of the 14 months. She currently owes me upwards of $5000, assuming that $850 is actually 1/3 of her income from the tenants. She has managed to pay my brother as promised every month so as to keep the building otherwise the two of us could just "kick her out" but just as long as she pays one of us, she's safe. I am aware of a drug/alcohol problem that she has and am also concerened that she is investing much money, of mine, into this addiction. I live in Las Vegas so I am wondering if I need a lawyer in Chicago or if I can get one here. I also don't know what field of law to get a lawyer ex.real estate, small claims court? Please help me know what to do.

Answer
Thank you for your question!

Mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.

The case you describe here sounds very typical of estate matters and unfortunately they are very complex and difficult to sort out as they cross all kinds of legal boundaries.  I am not a lawyer but I think it is time to get one involved, though you may be able to mediate a settlement that would be much cheaper and hopefully preserve your relationships here.

The first issue to sort out is the disposition of the estate.  If it is in probate you are entitled to petition the court for relief through the attorney handling the case.  If it has passed through probate, there should have been detailed instructions concerning the settlement and these documents would be the basis to move forward.  If you have a living trust or other mechanism at work, you may have to sue or otherwise compel some answers.  Time is not on your side however and if assets are sold you may have very little leverage even if you are in the right.  Every executor has the obligation to play by the rules--and can be removed if they don't.

Depending on where you are with all this, you would need Illinois representation in Probate Court if the estate has not settled, or general contract legal assistance if it has settled, also in Chicago.  The best play would be for both of you to petition for an immediate Temporary Restraining Order (TRO) which would freeze everything in its tracks until you could get it all out and look at it.  If both of you agree and can make a good case to a judge of malfeasance and problems, you are likely to get it.  Obvoiusly this kind of leverage is useful in getting people into mediation as well.  

You will not be able to use small claims as the values are to high and you should be looking for a business litigation attorney with understanding of estate and probate matters.

There will be ways to work this out but you must not delay action as inaction can be construed as a tacit approval.  

You can generally meet with a lawyer and talk your case over for free through the local Amerirican Bar Association.  They have a Lawyer Referral Service that will provide access to lawyers to consult without cost.  

These are some ideas.  Feel free to follow up with additional questions.

For your general information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:

    Confidential, no public record
    Limited exchange of documentation, information
    Quick, don't have to wait for a court date
    Arbitrators have expertise in the subject matter and are trained in conflict resolution
    Cheaper than litigation
    Preserves business relationships

Negatives of Arbitration

    It's a compromise, no %100 winner
    Complex arbitration can be costly
    If not satisfied, may litigate the arbitration procedure
    Poor results with an unskilled arbitrator
    Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

    Neutral mediator can objectively suggest alternatives not considered
before
    Parties are directly engaged in negotiating the settlement
    Can be quicker than litigation
    Less costly than litigation
    Preserves business relationships
    85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

    may not reach a binding decision
    unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

    a clear winner and loser
    uses a prescribed set of procedures
    more predictable outcomes
    is final

Negatives of Litigation:

    waiting for court dates can do more harm
    usually more expensive than mediation and arbitration
    part of the public record