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Passing a home with a mortgage through probate to next of kin

Fort Lauderdale, FL |

My mom is the sole name on our deed and mortgage. We did this because we purchased the home with a grant and it was a stipulation because I was underage at the time. My mom is not permitted to do a quit claim deed or other title change or she has to pay the grant back. She has a small estate. Her main asset is the home which still has a mortgage. How does it work if a person includes a home that still has a mortgage as part of her estate planning? Does the home need to be sold during probate or is there away to pass the house down without a sale? Thanks

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Attorney answers 3

Posted

The house can pass to you through probate. It does not have to be sold. You will, however, have to continue paying the mortgage after you acquire title to the property.

Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.

Asker

Posted

Thank you Mr Deason. So just to clarify: My mother would leave me the house in her will and I continue to pay the mortgage. Is the transfer guaranteed (again, assuming payments are made)? Would I need to get approved for the mortgage through the bank? I am young and do not have an extensive credit history

Posted

So long as the home is your (and presumably your mom's) homestead, it will pass to you if you are the named heir in her will or only heir if there is no will. Homestead property passes outside of probate. During probate, your attorney will request a Determination of Homestead, which will transfer the property into your name. So long as you continue to make payments on the mortgage (not sure what grant you are referring to), you will have no problems with the bank, although, they CAN accelerate the loan, it would not be in their interest to do so. Depending on the eventual size of her estate, you can file for a summary administration or, if her estate has grown appreciably, a formal administration.

My answer is of a general nature and should not be construed to be legal advice nor creating an attorney-client relationship. Carol Johnson Law Firm, P.A. practices in the area of Wills, Trusts, and Estates, Disability - with a particular focus on providing Special Needs Trusts for disabled children and adults.

Hollyn June Foster

Hollyn June Foster

Posted

Carol, I disagree as to acceleration. 12 USC 1701J-3(d)(5) exempts the provisions of the mortgage due on sale clause from being enacted when there is a "transfer to a relative upon the death of the borrower"

Carol Anne Johnson

Carol Anne Johnson

Posted

Hollyn, in the Asker's question she mentions "grant" and "mortgage" in the same sentence, so to cover her bases, I would prefer she take precautions to ensure the lender (whomever that may be) does not take an action adverse to her retaining her interest in the home.

Posted

Your mother should hire an experienced estate planning attorney to assist with her overall plan, including the home. If a proper plan is in place, it is possible to avoid substantial costs and delay in the title being transferred. The home should not need to be sold during the process. Be sure to continue to pay the mortgage, taxes, association maintenance and insurance during the transition after her death.

Answers to questions on this site are not intended to be specific legal advice nor create an attorney-client relationship. Hiring an attorney is a very important process which requires a high degree of diligence as well as entering into an agreement regarding the services to be provided and the fees to be charged.