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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6516
Experience:  Wills, Trusts, Probate & other Estate Matters
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If a man dies without leaving a will or assigning an executor. Does his surving spouse be

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If a man dies without leaving a will or assigning an executor. Does his surving spouse be responsible for distributing his assets and
paying his debts.

My Dad died without leaving a signed will. The loan company is asking for the executer of the will.
How does that get handled under Florida Law? Does my mom as the surviving spouse automatically become the executer of the will?
My mom and Dad own a house, but my Dad took out a home equity line on the house 7 years before he died. The house is being rented and the
rental payments is making the home equity payments.

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

So, the loan is in his name only? But your mother and father owned the home together -- is that correct? Did they purchase the home during marriage? Do you know whether the title to the home lists them as "joint tenants", "husband and wife", etc.?

Customer:

Yes, they purchased the home as joint tenants during the marriage, and yes the loan is in my fathers name only.

TMcJD :

Okay, well as joint tenants (if the deed specifically says that) or tenants by the entirety (presumed when a husband and wife buy property during marriage), then your mother now owns the property in her name only. Your father's estate has no interest in the property. The fact that only he was on the loan isn't a big deal as your mother succeeded by reason of his death. Under a federal law (the Garn. St. Germain Act), the lender cannot force her to refinance the loan. However, they may be wanting paperwork for his estate for their record keeping matters. However, if your father doesn't have other property that was in his name only and that didn't pass to your mother automatically via joint tenancy or because she was a named beneficiary, then there is no property of his estate. In the event that there is property of his estate, your mother would have priority to serve as administrator of his estate (referred to as the personal representative). However, that is not automatic. She would need to go to probate court and be appointed by the court before she had authority to act. If no probate is necessary, then that needs to be communicated to the lender (and that there is no representative because no probate is necessary). If a probate is necessary, then your mother should seek a local attorney's assistance in beginning the probate process.

Customer:

My Dad purchased two other pieces of land that are jointly in his name, my name, and my mother's name. Now my mother wants to transfer the house to my name and let me be responsible for the payments since she doesn't have a job. How would that work?

TMcJD :

Well, that would be much different. You would have to refinance the loan then or they could call the loan due immediately under a due on sale clause that 99% of mortgages have. But sometimes they won't care as long as payments are being made. But that's a risk you would need to carefully assess. If she still wanted to transfer title to you after filing an affidavit of death (to put title in her name only), then she could do that via a quitclaim deed. This stuff is not extremely complicated but there's still plenty of places to make a mistake so I really would recommend that she seek the assistance of a local attorney since there are several objectives in play.

Customer:

Well thank you for your help sir. I will need to see a local attorney.

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