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Who is responsible for a pre-existing mortgage, the life tenant or the remaindermen?

Albany, NY |

Me, my siblings, and my stepmother were deeded two properties by my father shortly before his death. A house where my stepmom lives, and rental property she tends to. We hold both properties as joint tenants with rights of survivorship, however my stepmom was also given a life tenancy in addition to jtros on both properties. This allows her to live in the house and collect the proceeds from the rental property. Both properties have a few years left on their mortgages. Who is responsible for making the mortgage payments? I haven't been able to find an answer to this question under New York State law.

Attorney Answers 4


  1. You probably won't find the answer in the law, but rather the practical terms of the obligations to the bank. Presumably stepmom and decedent dad were on both the note and the mortgage. So, even if she was just left a life tenancy, which is a current possessory interest in the property, she's still liable on the note and mortgage.

    However, let's say that dad owned the house outright, and only he is on the note and mortgage, but stepmom has a life tenancy in the deed or willed to her in an estate. Bottom line is, from the Bank's perspective, SOMEONE is going to have to keep paying that note, or they will foreclose on the mortgage by way of default.

    So, the law isn't going to get either the life tenant or the remaindermen off the hook to a third party: the bank which has a security interest securing the note/loan (the mortgage). In that instance, the life tenant and remaindermen will have to work something out between themselves to either pay off the mortgage entirely or keep making the monthly payments, or there won't be any property to argue about: the bank will foreclose, life tenant will be evicted and the remaindermen will have their future interest in the property extinguished.

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  2. To answer your question in part, the person who is "responsible" to pay the mortgage is the person who signed the promissory note ('Note") and mortgage security agreement ("Mortgage"). Assuming that the person who signed the Note & Mortgage was your now deceased father, technically no one is personally "responsible" to pay the mortgage payments.

    However, if no one pays the payments, the properties will definitely go into foreclosure. So, really, to determine whom among you, your siblings and your step-mother should pay the mortgage payments; this is really something that would have to be discussed and negotiated by and between yourselves. The alternative is to just sell the properties and proportionally divide the profits amongst yourselves.

    But just to be clear in answering your question as it pertains to the "responsible" party, legally; the only responsible party is the one whom executed the Mortgage and Note.

    Should you have anymore questions, comments or concerns, feel free to reach out anytime.


  3. I agree with the two above answers, however, one thing is puzzling. Why would your stepmom have a life estate in both properties? That does not make sense as a life estate is intended to allow a person transfer ownership of the property out of his or her name and keep the right to live in the premises until death. It has nothing to do with the right to collect rents and is in conflict with having an ownership interest with rights of survivorship, so something is off about your stated facts and that should be looked into.

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  4. When a person takes out a mortgage, he/she signs 91) a Note (debt obligation) and (2) a Mortgage that gets filed with the County Clerk giving the lender the right to re-possess the property in the event of a default on the Note (payments). The person who signs the Note is technically responsible for re-payment of the mortgage. if your father died, then the debt obligation legally passes to your father's Estate and the Estate would would be responsible for the payments. If no one pays the mortgage, the lender would sue your father's Estate. However, since it was deeded to you prior to his death, you accepted the property subject to all existing liens such as a mortgage (a phrase which is probably on the deed) and therefore if no one pays it, the lender still has the right to foreclose on the property. On a practical note, however, the bank really won't care at this point whose responsible as long as it's paid., so the issue of who makes the payment is solely one of agreement between you, your siblings and your mother.

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