I have property with my two brothers. They are single, I am married. The property is Warranty Deeded as Joint Tenants with full rights of survivorship. The Deeds list all three of us and the Mortgage document lists all three of us. However, I specifically got the loan and it is in my name only. If I die, the property goes over to my brothers, however, the loan is in my name. Does that make my estate and in essense my wife responsible for the loan without an interest in the propery and my brothers essentially get the remainder of the property free of any loan since they are not listed on the loan? What options do we have to protect my wife from inheriting an unsecured loan with no property to cover it?
State/Country relating to question: Florida
looking up online the differences between a Warrantee Deed, a Mortgage, and a Loan.
Hello, I will be happy to assist you with your question. I am a real attorney and strive to provide the most professional service possible. However, I cannot provide legal advice - I can only give you information concerning the legal issues raised by your question. After receiving your answer, please let me know if you need clarification (or if I misunderstood and didn't address your question).
I am sorry to hear of your dilemma, but I think I will have good news (or at least information you can use to prevent a bad situation from occurring after your death).
The loan, because it is in your name, will become a debt of your probate estate upon your death. However, satisfaction of the debt may come only from property that is part of your probate estate.
The home will not become part of your probate estate because it is a jointly owned property that will pass directly to your brothers. Other joint property would similarly pass to the surviving joint owner(s) and never become part of your probate estate or be subject to debts in your name only. This would include jointly owned bank accounts, jointly owned household and other personal property, jointly owned automobiles, etc.
In addition, any property that names a beneficiary (such as life insurance and retirement) will not become part of your probate estate or be subject to debts of creditors holding debt in your name only.
Your brothers would take the interest in the property free of the loan. However, they did sign the mortgage and that mortgage lien would still be valid against their interests. As such, if they did not pay the loan, then the bank could foreclose. Thus, although they may not be legally obligated to pay the loan, they will have to continue to pay the loan if they want to keep the property.
Thus to protect your wife, you just need to ensure that all property is jointly owned or that you have a device that bypasses probate (such as a trust). Those are matters that a local attorney could help you with.
As noted above, if you need clarification, please do let me know.
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