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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 102505
Experience:  Fully licensed attorney in Texas in private practice.
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My father passed away in March and s was the only name

Customer Question

My father passed away in March and his was the only name listed on his truck loan. The vehicle was repossessed last night as my mother owes 2,000 in back payments. she called today to try and pay the past amount to get the truck back and was told that since she wasn't listed on the loan that the only way they will return the vehicle to us is for us to pay the entire past due amount which is over $12,000. Is this legally correct? I am in Kansas and there wasn't a will but she is the surviving spouse so wouldn't that then make her the true owner and responsible party?
Submitted: 2 years ago.
Category: Estate Law
Expert:  Ely replied 2 years ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and 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.

I am sorry to hear about this situation. Allow me explain what has happened.

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' names. Without a will, default rules apply - see HERE.

Now let us assume this is done. The problem is that the lender likely has a clause in the contract that states that the loan SHALL BE ACCELERATED and all due should the borrower pass away. This is likely what has happened. Assuming this, they do not have to immediately transfer the loan into her name, I am afraid. She can put the title into her name, but the loan is still in his name is ***** ***** he has passed away.

SOME lenders will work to refinance with the beneficiary taking over the title, but they do not have to.

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Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!