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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 99981
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My common law husband of 30 yrs has died our home is in his

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My common law husband of 30 yrs has died our home is in his name only and morgage company won't speak to me until I provide poa . Death certificate etc the land is in my name can you help me?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; (B)If you receive a phone call offer while we chat, know that this is an automated test feature the site is running. Due to possible ethical issues, the site allows experts not participate in phone calls and I normally decline them. Unless the phone call offer you receive literally states "THIS OFFER IS FROM ELY" (which means I personally initiated it), please do not entertain any such offer; and (C) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am very sorry to hear about your loss and situation. I would be happy to help. Please tell me - have you filed probate? Or not sure what this is?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
No not sure what it is
Expert:  Ely replied 1 year ago.
Thank you.
When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts (those that do not have a pay on death clause) - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.
So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the hands of the beneficiaries.
This is the issue with the home, and that is why probate needs to be filed, or perhaps small estate administration or some other version of it.
The problem is that once probate is filed, many lenders have an ACCELERATION CLAUSE which means that once the owner passes, the loan is accelerated and everything must be paid. In addition, even if there is no acceleration clause, the lender may be hesitant to move the property into your name - they never qualified you as an owner... only him. They may not want to refinance the property into your name.
The way to overcome that part is with the federal Garn–St. Germain Depository Institutions Act. See here.. "When title is transferred by inheritance to a related owner-occupant. When a relative inherits and occupies a residence, the Garn-St. Germain Law bars the lender from enforcing the due-on-sale clause. However, some lenders will try to coerce the heir into paying an unnecessary mortgage assumption fee."
The common law marriage may also have to be proven, but if you had lived together for 30+ years, this should not be an issue.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.

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