My dad owned a 5 flat with a partner in Illinois. The partner died several years ago, and left his interests in the property to his niece and nephew. My dad passed two months ago and left his half interest to his wife (not my mother) and his 4 kids. In his trust and will, he stated that his wife could live in their unit as long as she wanted and the rent proceeds would pay the bills , but not for personal expenses. She and my brother are co-trustees. Would filing a partisan action be advisable or could one be filed with that life estate clause? She is 83 yrs old and her mental state is questionable.
2 Answers from Attorneys
First of all, you're right that your stepmother's life estate, if she has one, at least complicates, if not precludes an action for partition. Second, and perhaps more important from the view of the ageing judge, no one looks good when trying to kick an elderly woman, recently widowed, out of her house. But by all means, consult a lawyer, especially if there are other circumstances that call your father's will into question or if your stepmother can no longer live there for whatever reason.
I would meet with an attorney to consider step-by-step options and timing. It is not in the interest of either family to have the ownership get more and more complex. Even in the best families, too many involved individuals make for a difficult situation and it will only become more difficult if anyone in the succeeding generation passes. A valuation and buyout offer should be among the considerations before discussing partition and other options.