Skip to main content

I just received an Order of Notice from my deceased parent's mortgage lender's attorney. What if any are my responsibilities?

Fiskdale, MA |

My brother had power-of-attorney, and they took out a mortgage in 2007. Since then my parents have died (2007 and 2010). My brother continued to reside there and paid the mortgage. We never went through probate to settle the estate. My brother apparently stopped paying the mortgage. We just received an Order of Notice from a law office. What if any are my responsibilities?

+ Read More

Filed under: Estates Elder law
Attorney answers 5

Posted

You need to get yourself to an estate planning attorney ASAP.

You may have been left some (or all) of the equity in the house. If so, you may be at risk of losing it.

Do you want accurate, personalized, legal advice that you can rely on? You will have to hire an attorney, not ask on Avvo. I am not your attorney and am not creating an attorney-client relationship by this post. I am therefore giving only general advice. This advice may not apply to you or your situation; may not take account of all possibilities, and may not match the advice I would give to a client. DO NOT rely on this advice or any other advice on Avvo to make your legal decisions. If you want an answer to a legal question you should retain an attorney who is licensed in your state.

Posted

Although your question is in a way related to debt collection, I agree that you should contact a local attorney who handles probate / wills etc.

My answer is for only informational purposes and is not legal advice. I am licensed to practice law in Oregon and I recommend contacting a local attorney for the best help with your legal questions.

Posted

I am confused with the information you include. The fact that you received the notice means somehow that you might be on the deed or otherwise have some ownership responsibility. Was the second of your parents estates probated?

If so, the loan that was taken by your brother while he held the POA should have been addressed. If no probate has been done, you need to look at how the house is titled. You need to speak with an attorney who does probate work. He will look at the passing of both your parents and if your brother acted appropriately under the POA. Don't waste anymore time as you could risk losing the house.

Jennifer A Deland

Jennifer A Deland

Posted

Attorney Arany, in Massachusetts, real property passes by descent immediately on death, subject to the debts of the decedent.

Jennifer A Deland

Jennifer A Deland

Posted

Attorney Snell, I apologize. I attributed your answer to our colleague from Oregon. I, too, would wonder exactly who the "we" was who received the notice, because, if there was no probate, it would be difficult to determine the state of title. I would imagine the Notice was probably to the decedent owner(s) of the property. I don't know that the asker thinks that the POA was misused, although that could turn out to be the case. It is not uncommon for people to administer a parent's affairs with a POA, with joint accounts and other "probate avoidance" devices. This can work for small estates. What made it not work in this instance was the existence of the mortgage. I suspect that there is quite a lot of real estate out there that is owned by people who have passed away. Until someone tries to sell such a property, it may not seem to matter. But the later it gets, the harder (that is, more expensive) the mess will be to clean up.

Posted

When a person dies, all of their property should be gathered up and distributed, as they wish, or as the law allows, among their people. You did not do this, and you probably feel uneasy about that.

Although, if you did not sign the note, you are not personally liable, you and your siblings do have a responsibility to wind up your parents' affairs. A good way to start would be to visit a probate attorney and tell the whole story. A good counseling attorney will help you to sort out what needs to be done and by whom. Don't panic, but don't postpone this. When all is said and done, you will be better off if you do it, and sooner will be better. I recommend that you call an attorney and make an appointment tomorrow.

Jennifer A Deland

Jennifer A Deland

Posted

And, one more thing. You should go to the attorney alone, at least at first. You and your brother may have conflicting interests in this situation. You may want to find out where you stand before you involve him.

Posted

It sounds like the financial institution is petitioning to become administrator of the estate of the second - to - die parent.

If your parents owned the house jointly, the surviving parent would have owned the property at death, and something must be done to establish who owns it now.

Massachusetts Probate Law says that a creditor can petition to administer an estate if no one in the family steps up:

http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter193/Section1

Paragraph THIRD might be what the bank attorney is using to file his petition.

The question for survivors like you is: "How much equity is left in the house?" If your brother stopped paying the mortgage, he probably stopped paying the town property taxes and home maintenance, too.

If there's something left after those costs are taken care of by the equity (over and above mortgage principal and interest), you may have an interest worth pursuing. But you don't know until you investigate.

John L. Roberts
Estate Settlement, Probate, Estate Planning, Elder Law and Disability Law
Longmeadow, Massachusetts

PS: The Massachusetts Probate Code sets up a new system on April 1, 2012, and the statute linked here is repealed effective on that date.