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legalgems, Arbitrator
Category: Real Estate Law
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My father is dying. My mother is not listed on the mortgage

Customer Question

My father is dying. My mother is not listed on the mortgage or deed due to a bad refi. What will happen to the house and mortgage when he passes away?
Submitted: 2 months ago.
Category: Real Estate Law
Expert:  legalgems replied 2 months ago.

I am very sorry to hear of your father's declining health; can you tell me if your father has a will?

Customer: replied 2 months ago.
he does
Customer: replied 2 months ago.
She wishes to remain in the home and wants to be listed on the mortgage and deed
Expert:  legalgems replied 2 months ago.

Thank you;

if he is of sound mind, he can make a transfer to her via a quitclaim deed; if he is not of sound mind then there is not much that can be done.

But under the federal Garn-St. Germain Depository Institutions Act of 1982, a lender is prohibited from enforcing a due on sale clause in certain cases, such as where the transfer is to a relative upon the borrower’s death. So if the will leaves the property to the surviving spouse and she intends to reside in it, then the lender cannot charge her an additional fee for her to assume the mortgage (many will try, but when you quote the federal act they will be aware that one knows their rights).

The Act was passed to protect surviving spouses (and other relatives) from the acceleration of the due on sale clause.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 2 months ago.
Thank you. Is this document he needs to complete something we can get online or should we go to a lawyer to have this done? He is still of sound mind
Expert:  legalgems replied 2 months ago.

You can get it online (I could not find an uncopyrighted source so I am unable to link you) but I would suggest having an attorney handle it- it will help if anyone contends he was of unsound mind; also it needs to be filed with the recorder's office and the lawyer can get that done quickly; also it would be a good idea to go over the current estate plan to make sure everything is in order. It is not pleasant but it will help protect the heirs.

Expert:  legalgems replied 2 months ago.

Here's some information your father may be interested in:


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Expert:  legalgems replied 2 months ago.

Hi- just checking in to see if you needed clarification on any of the above information. If so please post here (there is no additional charge for this) and I will do my best to get you the requested information.

Thank you!

kindly rate positively (3,4 or preferably 5 stars) so I receive credit for assisting you-thanks.

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