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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 11557
Experience:  Licensed Texas General Practice Attorney
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My question is my mom just died a month ago and my dad been

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My question is my mom just died a month ago and my dad been gone for 4 years. They did not have an will or asign anybody in charge of there estate. My siblins an I would like to know should we contact the mortgage company that they were with first. Or should we pay this month mortage payment. Because we are in the process of cleaning out the house.
Submitted: 1 year ago.
Category: Estate Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

ultimately depends on what you are going to do with the house. If you plan on selling the house, and the house has a good amount of equity in it, you should certainly pay the mortgage, as well as inform the mortgage company. It's possible that the mortgage company can try to enforce the promissory note through the "acceleration clause", which is essentially a clause that says that the entire amount would be due upon a certain situation (such as the death of a borrower). Now mortgage companies almost never will take advantage of the acceleration clause, so long as there is someone paying the mortgage.

ScottyMacEsq :

Now if you are not going to pay the mortgage in the first place, then there's no need to let them know. However, if you are planning on selling the property, you should certainly let them know and pay the mortgage amount.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I was told by my bank representative today that if the bank the currently owns the mortgage on the house was to sell the house over what the owed total mortgage is, the sibbilings will get the overage. Is this true? Also, should I only pay one month's mortgage to clean the remainder of the belongings in the house?

ScottyMacEsq :

Yes, in a foreclosure.

ScottyMacEsq :

But they would sell that at public auction, meaning that the amount that would come from it probably would be much lower than if you got a realtor to sell it yourselves.

ScottyMacEsq :

As for cleaning out the house, if you're going to let it lapse, you don't need to pay the mortgage, because the foreclosure process would take longer than that (1 month).

Customer:

If you were in my situation and the current balance on the house is $90,000.00 what would be your advice? Do I give a courtesy call to the bank if we decide not to sell on our own?

ScottyMacEsq :

It depends on what the house is worth. If the house was worth as much as what is owed, or less, then it might be economical to walk away. Note that the bank could have a claim against other assets that were owned if you were to walk away. So it depends on the actual value of the house and the other assets in the estate.

Customer:

Assets?

ScottyMacEsq :

Bank accounts, 401k, IRAs, stocks, physical assets (cars, jewelry, etc...)

Customer:

Is everything that is in the home ours or can the bank take it as assets?

ScottyMacEsq :

They're assets of the estate, and while you can "take" them now, they could have a claim against them if the house sells for less than what is owed.

Customer:

If the contents are removed before the foreclosure, can the bank come to the myself and my sibilings for what was removeded?

ScottyMacEsq :

Yes, if it can be proven what was in there. Now as a practical matter, most of the time they don't, because it's very difficult, if not impossible, to prove what was in there.

Customer:

If the appliances are not left is that ok?

ScottyMacEsq :

That's pretty problematic, as applicances are "fixtures" that go with the house. They're not typically removable property, and it would be difficult to claim that they "belong" to you. So the bank would be more likely to sue if you took out appliances that were affixed to the home.

Customer:

If the applicances were not purchased with the home and bought by the myself and sibilings do we have a right to take them?

ScottyMacEsq :

IF they were affixed to the property, no. Only if you actually own the home (as in have it tranferred to your name, etc...) would you be able to do that. Now if it was not a fixture (such as if it were a countertop microwave, or removable washer and dryer) then that could be removed.

ScottyMacEsq :

But a built in oven, dishwasher, etc... would not be able to be removed.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

So how long does forcloser usally take about. And they can not come after us for anything after that right because are names are XXXXX XXXXX anything.

ScottyMacEsq :

That's correct that they can't come after you personally. Only to the extent that you receive any property from the estate can they come after you, and no more.

ScottyMacEsq :

As for the process, if they're really going quickly, it would take 6 months.

ScottyMacEsq :

But it could take a year or more, depending on the local docket, etc...

Customer:

Wow really. So if I don't pay now I will still have time to clean out the house still your saying right ! They want turn the power of but i will have to do that right also.

ScottyMacEsq :

If the power was in your mother's name, you would need to do that.

Customer:

ok i thought so about that

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq :

Are you there? Please note that I am still here, awaiting your response.

ScottyMacEsq :

If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~45 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Customer:

So finaly i want to say thank you on all of your advise it was very helpful. So would call the mortgage and pay them one more time yourself or would you just let it be. Ty very mush. you will get five stars. for all your advise you gave me.

ScottyMacEsq :

Again, it's incredibly dependent upon the value of the home and the value of the rest of the estate. If the estate is insolvent, then there's nothing that you have to do. You can just "walk away", essentially, from the home.

ScottyMacEsq :

What I would do is look at the value of the entire estate, the likelihood of selling the house for a profit on my own, and go from there.

ScottyMacEsq :

If I was going to walk away, I probably wouldn't pay anything.

Customer:

They didn't have know other land or cars or bank acount. Except what my mom was geting from ssi and my dads sad pention. They had know other estates.

Customer:

checking account to pay her bills and that was it. That was just enough to pay hers bill each month

ScottyMacEsq :

It sounds like something that I probably would walk away from. Again, I can't get a full picture of the estate, so it's hard to say for certain.

ScottyMacEsq :


If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (almost an hour) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!



Customer:

what about a shed that we had there ok to take that

ScottyMacEsq :

Sheds are difficult. If it's affixed to the property, no, because it's a fixture. If it's easily removable without any "footprint", then it would be more likely to not be a fixture.

Customer:

had we had it built their and my one siblin would like to take it with him. He has the mashine to do that. So that would be ok then after he takes it just rake the the area up and clean that area right.

ScottyMacEsq :

This is so fact dependent that I cannot say yes or no. I can only say that if it were a fixture, no. Whether or not something IS a fixture is a fact question for the courts, not me, to decide. It depends on how customized, how affixed, how easily removed, it would be, and if something were considered to be part of the property or something that could be removed.

ScottyMacEsq :

I cannot possibly say via this forum whether or not it IS a fixture or not. Sheds typically are fixtures, but not necessarily.

ScottyMacEsq :

It all depends on the type of fixture.

ScottyMacEsq :

*type of shed

Customer:

wooden one

ScottyMacEsq :




Again, I cannot and will not say definitively whether or not it is a fixture. That is for the courts to decide, and even if I knew everything there was to know about it, the courts could disagree with me.





ScottyMacEsq :

I wish I could say one way or the other, but I cannot.

ScottyMacEsq :

If I could, I would, but it would be telling you something that I don't know for certain.

Customer:

ok ty

ScottyMacEsq :




My pleasure. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (> hour) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!





ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq :

I am still here, waiting for your response or your rating.

ScottyMacEsq :

Should I continue to await your response, or may I assist the other customers that are waiting?

Customer:

how do i save this and can print this out for my siblins

ScottyMacEsq :

You can only print it after you rate it (it will switch to Q&A).

ScottyMacEsq :

(you may need to refresh, F5 or the refresh button to see the change)

Customer:

ok ty scotty

ScottyMacEsq :

Again, my pleasure. If there's nothing else, please rate this answer. This question does not close until you do. Please note that I don't get any credit for the time (~1 hour 20 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 11557
Experience: Licensed Texas General Practice Attorney
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