My daughter and I are both on the mortgage and I'd like to sign my part over to her as simple as possible I'm 68 9 retired and I want to give her the house and she's have she's on the mortgage already valid just sent it over to her
You will have to arrange with the current beneficiary to get off the loan. Getting off title is easy, but you're still going to be on the loan until the lender lets you out of the deal. A quit claim deed would convey your interest. Most intra-family transfers are free of transfer tax, although depending on the equity, it might be a taxable gift.
I'd recommend checking with a local real estate lawyer to figure out how to do it without triggering due-on-sale clauses, transfer taxes and gift taxes.
The Prior Loan:
You are free to proceed with that transfer without seeking any consent from the existing lender. No formal "assumption" of the loan is required. In the residential lending market, the lenders rarely would do that anyway.
The prior lawyer's answer is correct that you will remain liable for the payment of the debt. If your daughter does not complete the payments, the lender can choose to pursue you for payment. However, if the property is residential and the lender chooses to foreclose, that lender cannot also pursue you for payment of any deficiency.
The common solution to remove your obligation as a borrower is for your daughter to refinance. If she is qualified due to income and credit to obtain a loan in her name, that can be later done without your participation.
The lender is not allowed to declare a default pursuant to a "due on sale" clause for a transfer from the parent to the child. 12 U.S. Code §1701j–3 (d)(6).
The Documents for the Transfer:
If you acquired that property with both on title, and therefore you both have a prior title insurance policy, you can use a quitclaim deed now [Form LPB LPB 12-05 (individual)]. But if you acquired the property without your daughter on title, then you should now use a warranty deed [Form LPB 10-05 (i)]. Technically that continues the protection and the value of the prior title insurance policy by providing warranty liability that is backed by that title policy.
You as grantor should sign using the exact same name as when you acquired.
If you were married at the time you acquired that property, and if your wife did not sign a quitclaim deed at that time to confirm it was your separate property, then there is a presumption that your title was and remains community property. If those are true, then your wife should sign this deed to your daughter with you to ensure no question will later be raised. If those are true and your spouse has passed, then we must also address who inherited her interest. If there was no probate, then you as surviving spouse would inherit. There is yet another form for you to sign and bring to the recorder: it is called a "Lack of Probate Affidavit."
Use the exact same legal description as used on the prior deed when you acquired.
The grantee is your daughter's legal name. If she is married, decide if you want to convey to her and spouse, or to her as her separate property. If you choose to her alone, after her name state "a married person as her separate property." To ensure no question is later raised, her husband can sign at the bottom of your deed under this sentence: "[John Doe] is the husband of [Daughter Name] and signs to acknowledge he has no community property interest in this property." Usually a title company will ask the spouse to sign a separate deed, but that will incur more recording fee.
Acknowledgement Certificates and Recording:
Sign the deed before a notary public to have the acknowledgement certificate signed, then take that to the Auditor [County Recorder]. There will be a recording fee you pay at the counter.
See my second post for instructions related to the documents needed for the Real Estate Sales Tax.
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