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Why is the mortgage company request proof that I'm the executor of my late husband's estate when we're both on the title & deed?

Aptos, CA |

He refinanced our long-time home in his name 2 years ago but I'm on the deed and title. After months of stonewalling me, the mortgage company has given me permanent access to the account. Now they've asked for paperwork stating that I'm the executor - I thought I didn't need that in CA as a surviving spouse and joint tenant? My husband died without a will and I want to avoid probate. (Everything we have has was set up as joint-tenant for that reason...we were married for 32 years.)

Also, the bank's collections department is allowing to "get current" on mortgage (when my access was blocked, I missed 2 payments) by making one payment over the phone - do I ask for anything in writing from them promising to make account current before making the payment?

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Attorney answers 3


Working with banks is a difficult and exasperating process. They are not very customer friendly on these types of issues, and usually there is no one at the bank who is authorized to address your situation individually or adjust bank policy to the facts. If you hire an attorney, you will be much happier and better off. This is because the attorney will have the experience and know how to avoid or limit any court involvement, work with the bank to try to bring the loan current, and get the account resolved and settled so that you can manage it in the future. There are specific legal procedures that will allow you to get control of the mortgage for purposes of payment or to otherwise get the process regularized. The main reason to hire an attorney is to avoid your own aggravation and worry, to let the professional solve the problem for you, and to get the job done right the first time. Furthermore, if you do not work out the issue with the bank soon, it is possible that it will become more difficult and more expensive to solve the problem later.

Brad C. Brereton
BreretonLawOffice. com

In all cases it is advisable to consult an experienced attorney. Nothing stated herein is intended as legal advice for your specific situation, and you should use the information provided solely for the purpose of choosing an experienced attorney for the problems presented.


Make sure to record an affidavit of the death of the joint tenant along with you husband's death certificate, so you can take over your deceased husband's interest in the home. By showing that you are the sole owner of the real property, the bank must have to work with you for you to take over the loan.
Edward C. Ip

No attorney / client relationship established. The answr is for discussion and general information only. The lawyer had not reviewed any documents or contract prior to the above comments.


I agree that you should retain an attorney to help you navigate through this problem. The attorney will assist you to record and Affidavit of Death of Joint Tenant to get title to the property in your name alone. However, from the lender's standpoint, this might be a transfer that will trigger a due on sale clause, making the mortgage immediately due and payable in full because your husband, the borrower, is no longer around. The bank is asking if you have been appointed executor of your husband's estate to insure that you have authority to deal with them concerning the mortgage, and so that they can file a claim against your husband's estate. Your attorney will help you file the probate proceeding and obtain authority to deal with the lender and exercise some control over the lender until things can be worked out. Basically, the bank will have to agree to let you assume your husband's loan, re-finance the property, or try to force its sale. If there is sufficient equity in the house, and if you qualify for a HECM (a federally insured reverse mortgage) you may be able to pay of the loan and live in the house mortgage-free, with responsibility for only regular maintenance, property taxes and insurance. You need to work with a qualified attorney right away. Good luck.

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