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Can a mortgage company hold funds from an insurance claim if I am not the person on the mortgage?

Weymouth, MA |

My father held the mortgage to our home in his name alone. He past away in Jan. of this year. I am on the deed and I am owner by survivorship. In March I filed an insurance claim due to a wind storm that tore off part of my roof. I have completely followed all of the mortgage company's rules as to handling the claim, paper work, etc. As of this date I am still unable to repair my roof because the mortgage company is holding the funds and refuses to talk to me as they say I am not authorized on the account. The homeowners insurance is in my name and the check from the insurance company was also in my name. Can the mortgage company hold the funds not allowing me to fix the roof?

Attorney Answers 1


You did not state that you were named as the personal representative or executor so you should have that person contact the mortgage company and demand payment to the estate and then the estate can pay you. The executor may have to provide the order appointing the personal representative signed by the probate judge to the mortgage company in order for them to act but that should be all you need. If they continue to refuse you need to involve the probate lawyer.

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Thank you for your answer. I am not executor of the estate as there is no other estate other than this property. We purposely worded the deed to include " joint tenants" to avoid having to go through probate. I plan on continuing to pay on the mortgage as it only has 5 years left on it. Do I need to become executor , because this is another expense i can not afford?

Etienne Michel Font

Etienne Michel Font


I presume your father died intestate (without a will), but probate is more than just dividing the estate, it also serves to clear debts. The mortgage is a debt he had. The mortgage company cannot go after anyone not listed on the mortgage, but they can take the house. If you do not clear this matter in the proper way, they may create issues with your property that will be infinitely more costly than retaining a probate lawyer to clear his estate. Because of the size of the estate you may be able to find a probate lawyer who will charge a small flat fee for handling the estate. In the end you will have to have the mortgage in your name. I don’t think that once the mortgage company figures out that your father died that they will let it continue for five more years. Review the mortgage document to see if there is any section which talks about the death of the mortgagor. Some companies sell life insurance on the mortgagor to clear the mortgage in case of death and make that part of the payments. This matter is very complicated but I would at least contact a probate lawyer in your area and discuss it to see if you have any other recourse in the matter. You want to meet someone face to face so they can review your documents. Otherwise all we can do is give you vague advice. Good luck.

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