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
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 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.
Please note: If I tell you simply what you wish to hear, this would be unfair to you
. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
I hope this helps and clarifies. Gentle Reminder: Use the SEND
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.