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Can I do a contract for deed on my Dad's home that I am the sole beneficiary (through beneficiary deed) when there is a mortgage

Lexington, MO |

My Dad passed away in Dec. 2011. The house has a mortgage on it, and it was transferred to me through beneficiary deed. I have had it up for sale since Jan. 2012, with no avail. Someone is now interested in doing a contract for deed with it. First, can I do this with a balance still owed on the home, and secondly, what do I have to file to start this? I am hearing I need an affidavit of death. What else?

Attorney Answers 4


  1. Best answer

    you are now the owner; to clarify title, you need to file an appropriate affidavit of death. As owner you have the right to enter into any contract regarding the property. Keep in mind that you are not personally liable on the mortgage and if the house is now equal to the debt on the mortgage you can stop making payments and let the lender foreclose without fear they can come back to you. If you think you can get the mortgage paid off and ultimately get some equity out of the house, you really should use an attorney to prepare a contract for deed.

    This comment does not create an attorney-client relationship. The law and its application by the courts is constantly evolving and changing. This discussion is not to be taken as a definitive guide, and should not be relied upon to determine all fact situations. Each set of facts must be examined separately with the current case and statutory law analyzed and applied accordingly.


  2. Yes, you should be able to do this. In my state, you would file a death certificate to remove your father from the deed. You would also record a memorandum of land contract to reflect the new contract for sale. The actual paperwork should be prepared by an attorney. It should not be overly expensive. Having the attorney do this will ensure it is done right, and could head off a lot of potential problems, down the road.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  3. You need to have an attorney review the mortgage to make sure that the due on sale clause would not be triggered with a contract for deed transaction. This is important to get the advice of a good attorney.


  4. Yes, you will need an affidavit of death. However, be careful. This may trigger an acceleration clause making the totality of the note due. Remember, the bank didn't give you a loan, the contract was with your dad. Have all of your "ducks in a row" first. If the balance exceeds the contract price, find a realtor who specializes in distressed property sales and approach the bank about a short sale. There appear to be a lot of issues here and you certainly need to seek a corresponding level of professional assistance.

    INDEPENDENT LEGAL ADVISE IS RECOMMENDED. The forgoing opinion is based upon limited and hypothetical information. The answer provided is not intended as a substitute for legal representation and is not intended to create an attorney/client relationship.

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