I'm the executrix of my mom's (deceased) will. She left the house along with a home equity loan of $96,000. She had no mortgage on the house. She has no other debits. The will stated that the house be split 50/50 between my sister and I. I want to live in the house so I'm going to pay my sister for her share of the house. The home equity loan is secured by the house but it is NOT assumable. The question is...Can the title or deed to the house be transferred into my name if the home equity loan is in my mom's name? I plan on continuing paying on the loan. By the way, I don't know if it matters, I declared bankruptcy January 2011. The house is in Georgia and I probate is over. I got the papers signed by the judge a week ago.Heidi Bramwell~ XXX@XXXXXX.XXX
State/Country relating to question: Georgia
The have tried talking to the bank that the home equity loan is at. The courthouse and a probate lawyer but the lawyer wouldn't help us over the phone. That process costs $1000.
Dear JACUSTOMER - I'm not certain how you could have completed the probate if the house is still in your Mom's name since the executor must transfer the real estate from the estate tot the beneficiaries before the estate is closed. In any event, a home equity loan is the same as a mortgage. Virtually all mortgages have what is called a "due on sale clause" meaning that if there is any transfer the bank can accelerate the mortgage. Generally in family situations such as this the bank will allow the family member who inherits the house to continue to pay the mortgage although they will not permit an assumption.
So, yes, you can transfer the property to you and your sister and you can continue to pay the mortgage but be advised that the bank could call the loan meaning you would either have to sell or refinance the property. You are not personally liable for the loan however the house would be subject to foreclosure if it is not paid. You may want to talk to the bank to be certain they will allow you to continue to make the payments and not accelerate the loan. Based on the fact that you just had a Bankruptcy it is unlikely that you would be able to refinance on your own.
I misunderstood what PROBATE meant. Probate is not over until the estate is non-exstinate, right? So, the title to the can't be changed into my name? Until the loan it satstified? The bank is the ones we need to talk to about the loan as it sits right now?
No, that's not what I said. I said you can change the title into your name regardless of the mortgage but the bank can accelerate the loan if they want to do so. You can talk to the bank if you wish or you can simply keep paying the loan. The home equity loan does not prevent you from deeding the property to you and your sister pursuant to the terms of the will. then if she wants to deed her portion to you she can do so. The bank has no duty to agree to allow you to continue to pay the note but generally they will do so under these circumstances so long as the payments stay current. They probably will not allow any further borrowing on the line of credit. In order for you to have the power to transfer the deed as the executor you have to be appointed by the probate court and the estate must be open.
1. So, I can have the title to the house put in name. Do I need to have a lawyer do this?2. If I continue paying the home equity loan there shouldn't be a problem.3. I HAVE been appointed by the probate court as the executrix. Does this mean probate is taken care of or does probate continue until the home equity loan is paid?
The loan has nothing to do with the probate. The probate will be over when all the assets have been transferred and the bills paid. then you have to file a final accounting and tax return to close the estate with the court. You are the executrix of the estate so you must follow the terms of the will meaning you would have to transfer the property to you and your sister or your sister would have to sign a release or a quit claim deed with the probate court. All of this is somewhat complicated and while you are not required by law to have an attorney it may be that you will not be able to prepare all the necessary documents needed to close the estate and transfer the property. I can only offer you some guidance from this website but I have no way of preparing documents or actually representing you in the probate court.
I understand. You have helped a great deal. Thank you!!
No problem and thanks for using our service - Dave
25 years practicing attorney
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