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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100048
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I have a home in my moms and my name, the mortgage is in my

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i have a home in my moms and my name, the mortgage is in my moms name only. my moms been dead for four years. everything has been ok untill now. bank of america wants a document saying i am the executor of the estate with court approval. ive been paying the mortgage with my checks for four years . there was never a need for probate so ive never been to court. what do i need to do?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
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I am sorry to hear about your loss and situation.
Why probate is needed
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 beneficiaries' hands.
If someone passes away
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. THE LENDER MAY SIMPLY HAVE BEEN UNAWARE THAT SHE HAD PASSED UNTIL NOW. 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 her. They may not want to refinance the property into your name. IF that happens, 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."
File Probate
So one wants to file for probate - see here. If you tell me what county this is in, I can possibly find the forms for that county.
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