My husband and mother purchased a home together as tenants in common in 2006. I'm not on the mortgage or deed. We were married in 2009, I was not put on the title or deed due to my credit history. But I have been helping pay for the home, taxes and utilities since the home was purchased. My mother passed away in 2013. Her name is still on the home. My mother had a will, but not a trust and named me to inherit her portion of the home. I have asked many times to be added to the deed and he refuses and said "it will be better to add me to his will." Which I know is a lie!! We are getting a divorce in the near future because of this but he doesn't know about the divorce. What can I do to stop him from taking my mothers name off of the home?? Can he rmodify/refinance the home with my mother's name on the home?? How can I add my name to the deed if he doesn't want to??
If your husband (soon to be ex) and mother held title as tenants in common, there was no automatic right of survivorship by and between the two them...meaning that upon the demise of one or the other, their respective ownership interest would pass to a successor by a will or your state's intestacy statute. Given the fact that you were specifically bequethed the property via your mother's will....provided same was probated with proper testamentary formalities...you own you mother's interest and there is no need for a new deed, per se. A copy of her death certificate and her probated will, coupled with the original deed...evidencing that they held title as tenants in common....would substantiate and validate YOUR ownership interest as to her half. You are in title; he cannot refinance absent you executing the mortgage/deed of trust, as the vested owners must be depicted on the security instrument creating the lien against the home (pledged as security for the monetary loan). This is a generic response to provide you with some solace and direction. Defer to a local real estate attorney, presenting all requisite documents, to wit, the original deed (copy is sufficient), probated will, and death certificate for definitive guidance. Good luck to you.
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If you are certain that title is held as "Tenants in Common" rather than "Joint Tenancy" then you should be ok because a title insurance company will not insure the title without all Tenants in Common signing a Deed of Trust which is necessary for a refinance.
Your soon to be Ex cannot add you to title to replace your mom as that must be done through probate since there is a will and not a living trust.
I would suggest that you contact a probate attorney to get the ball rolling to both secure your portion of the title and prevent any potential fraud. The fraud that is common that I would be concerned about is your Ex having someone fake your mom's signature. While this shouldn't happen because the signatures need to be notarized, trust me it does happen all the time. I once had a case where someone signed two deeds on different days after they passed in front of two different notaries.
Kevin A. Spainhour, Esq. - Hopefully this information is helpful. My answering this question giving my general thoughts does not create an attorney/client relationship and is not a legal opinion. The only way to create an attorney client relationship is to retain our services and that can be done over the phone, email or in person.
I would consult with a family law attorney in confidence (this forum is public) for advice about divorce planning. I am sure what you will learn will be well worth a consultation fee.
Please consult or retain a lawyer for your particular issue.
I'm unclear how it is that your mother's will named you as heir to her title in the house and that wasn't resolved by the Probate Court. Who was the attorney for your mother's estate? The name change should have taken place under the jurisdiction of the Probate Court. Certainly as tenants in common, as noted by my colleagues, all owners' signatures will be required for title to pass, unless you signed a quitclaim deed, which you don't mention so I presume is not the case. He definitely can borrow money against the home, as an owner, but he cannot give a deed of trust to the lending bank for more than his share of ownership, so even if he defaults on a loan, the bank would only be entitled to what he had to give, which would be (presumably) 1/2 ownership. This makes it highly unlikely that he could get a loan, because a foreclosure would not pay off the loan, and who wants to buy half a house from the bank?
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