Mother is unsure if she should try to transfer mortgage and deed to herself and then sell the house or walk away and let the bank foreclose. She cannot keep up with the mortgage with her sole income and the mortgage has already gone through a modification prior to my father's death.
If she chooses to try to keep the house, she needs direction on which steps to take towards probating the estate.
On paper it looks as if the house could sell with a small profit, but the reality is that it would mostly be lost to concessions during the sale process, as the house needs multiple repairs.
Any advice on this situation would be greatly appreciated.
As the deed was in the name of your father only, the estate needs to be probated. Through the probate process, the mortgage will likely need to be paid off and if the only asset in the estate is home itself, the home may need to be sold in order to satisfy this debt.
If your father declared homestead on the property, your mother is likely entitled to that protection. It will protect the home in the amount of the homestead until she is given title and able to make her own declaration. Especially if the home is the only asset, this will give her some protection and some interest in the estate.
Your mother should consult with a probate attorney. My firm certainly handles these matters, as do many lawyers you can find using the "Find a Lawyer" feature above.
I'm sorry for your loss. Please let me know if I can be of assistance.
Real Estate Attorney
A local probate attorney should be able to help your mother. Sorry for your loss.
Actively practicing law in Texas. Inactive licenses in Arizona and Georgia. All answers are general in nature and no attorney/client relationship exists in this forum.
Real Estate Attorney
I am sorry to hear you have lost your father.
Because your father was the sole owner when he died, the home will need to go through probate whatever happens next. Your mother should meet with a probate attorney to get some assistance in probating the estate. Probating an estate involves - in varying degrees of complexity - asking the court to name you as personal representative, to accept the will of a person if they left one, gathering up all property, assets, and debts, and then distributing any property according to the deceased's will or the intestacy laws.
Christopher Vaughn-Martel is a Massachusetts lawyer with the firm of Vaughn-Martel Law in Boston, Massachusetts. All answers are based on generalized Massachusetts law and the limited facts presented by the questioner. All answers are provided to the general public for educational purposes only and no attorney-client relationship is formed by providing an answer to a question. If you would like an attorney with Vaughn-Martel Law to review your specific situation and provide you with legal options or information specific to you, you may schedule a telephone or office by calling 617-357-4898 or visiting us at www.vaughnmartel.com. Our office charges $100.00 for a consultation, and applies your consultation fee to your first bill if the Firm is hired to perform further work.
Elder Law Attorney
You don't mention whether your father had any assets other than the house. If not, and if your mother decides to walk away, she is under no obligation to probate the estate if it looks like there is nothing in it for her. The bank can petition for probate as a creditor and go from there.
E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.
Elder Law Attorney
First, I am very sorry for your loss. I would suggest that you first start by getting a fair market value on your house. This will give advice on how much the property can reasonably expect to get at sale. If the house is the only asset to be involved in a probate, and the value of the house will not cover the cost associated with the sale (commission and stamp tax are the largest ones) and the cost associated with obtaining the probate (you could reasonably expect to spend several thousand dollars), and your mother’s name appears NOWHERE on the mortgage or deed, then I would tend to agree that your mother can live there and pay the expenses associated with living there until the bank asks her to leave through a foreclosure process.
As an aside, if there are any other assets in your father’s name individually, you will need to probate the estate. However, there may still be ways to not accept the house as part of that process. Therefore, I wouldn’t suggest that you make this decision without counsel. There is a possibility that the bank will negotiate with you if you have a zealous advocate on your side. Good luck.
*** LEGAL DISCLAIMER I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Reading. My practice is focused in the areas of elder law, 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. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.