Under what circumstances is a probate not necessary when a husband dies Interstate and I, his wife is the only heir?

Asked over 1 year ago - Newberg, OR

There is no Personal Representative named. He passed 1/2/12.. I failed to file and Publish a "Notice to Creditors" nor give written notice to any known creditor, which would be the mortgage company. I am not on the loan or house title. I read an article on your site stating, failure to do so within limited time period, creditors debt will be barred, and the creditors will have no right to recover. I am not on the loan or house title. I have not sent death certificate to human services. Wells Forgo Is trying to push me into probate to appoint an executor which I refuse to do. He died Interstate, I am the heir, everything falls automatically by Oregon State Law. Does it not? .

Attorney answers (4)

  1. Diane L Gruber

    Pro

    Contributor Level 18

    5

    Lawyers agree

    Answered . You cannot obtain title to the house until after the probate process has been completed. Your husband stilll owns the house. The house is not automatically yours because he died. Also, if there are any other assets just in his name, you cannot inherit them without a probate. Check out my "legal guides" about probate. They can be found on my profile page of this website. Good luck.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662.... more
  2. Joseph Jonathan Brophy

    Contributor Level 20

    4

    Lawyers agree

    Answered . As sole heir, you have a right to the house, but subject to the debt to the bank. The mortgage attaches to the house, and that is a lien that won't go away. You don't own the house until you go to probate. You are delaying foreclosure of the house by not going to probate but it can't be delayed forever. You should consult with a probate lawyer to consider whether to file for probate, transfer the ownership of the house and then deal with the bank. The alternative is that eventually the bank will foreclose and take the house.

    Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to... more
  3. Joseph Franklin Pippen Jr.

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . Everything goes to you through the probate system.
    So if you want the house in your name and the power to deal with the bank-
    you need to meet with a probate attorney.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more
  4. James P. Frederick

    Contributor Level 20

    2

    Lawyers agree

    Answered . I agree with my colleagues. I would just add a couple of points. With respect to the notice to creditors, this does not need to be provided to secured creditors like the mortgage company. They have a lien on the property and if you fail to pay, they will simply foreclose.

    Probate is necessary, regardless of the mortgage, because you are not on the title of the home. You cannot legally do anything with the house. There is a better than even chance that you cannot even insure the house, because you are not an owner, so you do not have an insurable interest. If you have not notified the insurance company of your husband's death, they will likely deny any claims that you have. For this reason alone, you should probate the property and get it titled in your name alone.

    Under Federal law, the mortgage company cannot force you to refinance and they cannot accelerate the debt, as long as you keep the payments current.

    Lastly, whether you are the only heir depends on whether your husband had any children or not. In some states, in the absence of children, his surviving parents might also have an interest. You should meet with a probate attorney to determine how best to proceed.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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