Barrett, Twomey, Broom, Hughes & Hoke, LLP

Serving the Legal Needs of Southern Illinois for over 50 years

• Phone: 618.457.0437
• Toll Free: 877.586.4425
• Fax: 618.457.0411

100 North Illinois Ave.
P.O.Box 3747
Carbondale, IL 62902-3747

Legal Counsel Info

Real Estate

Real estate law is a very broad field which ranges from basic home sales to extremely complex commercial transactions, including some of the following:

• sales and purchases of improved and unimproved property
• investment in and development of residential and commercial properties
• covenants, conditions and restrictions on the use of real estate
• homeowners associations
• commercial and residential leases

Barrett, Twomey, Broom, Hughes & Hoke, LLP is committed to assisting its clients to make these types of transactions as comfortable, clear, and efficient as possible.

One of the most important decisions most families make is the purchase of a home. The excitement of this purchase can cause some buyers to make significant financial commitments without adequate investigation. Having an attorney assist you with this process can help you avoid some problems.

It is extremely important that you purchase property without liens or other problems that you were not aware of. Some questions you should ask to avoid disappointment are:

• What covenants, conditions, or restrictions are in place which would affect your use of the property?
• What type of deed will you get?
• A quitclaim deed will convey to you only whatever interest the grantor has in the property at the time the grantor signs the deed. If the grantor has no interest, you get no interest. If the grantor acquires an interest after the grantor signs the deed, the grantor gets that interest, not you.
• A warranty deed, which contains language such as “grants, sells and conveys”, “to have and to hold forever”, and “warrant and defend the property to the buyer”, guarantees the grantor’s title and ensures that if a problem with the title to the property arises, the grantor will be responsible for clearing that title problem.
• Will you get title insurance? A title insurance policy, from a reputable company, will provide insurance against many title problems. If there is a problem, rather than relying on a grantor who may not be available or may not be financially able to solve a title problem, the insuring title company could either investigate and correct the problem or compensate you for your loss.
• Is there a written contact to purchase? A written contract to purchase a home should address the rights of the buyer and the seller. It should include all of the terms of your sale, including the sale price, earnest money deposit, financing contingencies, closing date, possession date, real estate tax prorations, inspection rights, warranties of condition, and any personal property included. You should not sign any contract or other document related to the sale which you do not understand.
• Did you get a lead based paint disclosure? If the property was built prior to 1978, federal law requires that any contract for sale of residential property must include a lead warning statement.
• Did you get a Resident Real Property Disclosure Report? Illinois law requires that every seller of residential real estate must provide a prospective buyer with a disclosure of material defects in the property before the buyer signs a contract to purchase.

There may be many other questions you have or issues you may want to address when selling or purchasing real estate. Your real estate attorney can help you with these.

Estate Planning

An estate is a life plan – how you will accumulate property, manage that property during your lifetime, and plan for future contingencies. It is also a plan for management and distribution of your property after your death. An estate plan usually consists of an inventory of your material items of property, a will or trust to provide for the disposition of your property at death, a liquidity plan for cash if needed for debts or taxes, as well as durable powers of attorney for both property and healthcare so that decisions can be made on your behalf if you become disabled. An estate plan must be carefully tailored for each individual.

Wills

A will is a document prepared to carry out your estate plan. All wills must be in writing, be signed by the person making the will (who is called the testator) and be witnessed in the testator’s presence by two or more disinterested witnesses. A will directs the distribution of property after your death and appoints and executor who carries out your plan. You may also nominate a guardian for minor children and set up a trust for them in your will. If you die without a will, your property will pass to persons specified by State law, which may or may not be consistent with your desires. Property in joint tenancy with right of survivorship, insurance policies, retirement plans, and payable on death accounts generally are not affected by a will.

Health Care Advance Directives

There are several Illinois laws dealing with health care advance directives: the Illinois Health Care Surrogates Act, Living Will Act and Short Form Power of Attorney for Health Care. If the patient is in Illinois and has no written directive, then the Illinois Health Care Surrogates Act provides that the next of kin can make medical decisions if the patient lacks decisional capability and is suffering from a terminal condition. An Illinois living will is a document that records your direction that your life shall not be artificially prolonged if you are suffering from a terminal condition. The most comprehensive advance directive is an Illinois Short Form Power of Attorney for Health Care. This document allows a person to indicate their choice as to life sustaining treatment. In addition, it allows a person to choose his or her agent for making health care decisions if the person is unable to do so.

Living Trusts

A trust is a method of holding title to an asset under a written document which provides for many contingencies. The person who establishes the trust is usually called a grantor or a settlor. A trust requires a trustee-someone to hold the property-and a beneficiary. The grantor may also be the trustee and beneficiary. A trust may either be revocable or irrevocable. In a revocable living trust, a person transfers property to himself as trustee to hold for his own benefit with a successor trustee to take over at his death or disability. The successor trustee follows the trust terms for the management and distribution of the property. The main advantages to a revocable living trust are that it avoids probate, is completely private, and avoids the potential for a guardianship should the grantor become disabled. A revocable living trust is often the preferred estate plan for people who are of retirement age.