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Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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I need to know if the wording below means the same thing:1.

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I need to know if the wording below means the same thing and what do they mean: 1. if upon my death any mortgages encumbering the M property, Y shall assume any of the existing mortgages as a condition of the receipt of this specific gift. 2. upon my death there are any mortgages the obligation to repay said mortgages as condition of the receipt of the specific gift.

RayAnswers :

Thanks for your question and good afternoon.

RayAnswers :

These two clauses really would have the same effect.The heir has the option whether to take the gift(property) and assume the debt that goes with it.This would leave the heir with the legal option to decline the property if it were say underwater or their circumstances were such where they could not make the payments.

RayAnswers :

Once the property was transferred to them they would contact the lender to have the note transferred to their name.Either or these clauses will have that effect.

RayAnswers :

An heir in this situation always has the option to decline the gift if they cannot or don't want to assume the debt against it.

RayAnswers :

And the lender would require them to receive the property by deed before they would then transfer the loan to the heir's name.Either of these clauses would carry out the gift and have the heir assume the debt and note against it.

RayAnswers :

It has been my pleasure to assist you today.Please let me know if you have more follow up.Thanks again.

RayAnswers :

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This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

RayAnswers :

Thanks again for letting me help you today.It has been my pleasure to do so.

Customer: replied 4 years ago.

the property is currently in a irrevoccable trust and the heir is a church that does not have pastor or a board with voting rights. the person who accepted the gift is only a member of the church. so I was wondering how it could be accepted at all. NOT many lawyers want to get involved with church business but if you can answer I would appreciate it if not I thank you for your time

Here unless the trustee deeds it to them based on written acceptance on the property by the entitity itself there is no legal transfer.The deed would be to the church itself and they would have to assume the debt against it.I am not at all sure that a memeber here has any authroity to legally accept it from the trustee pursuant to the trust.

And only the church could then contact lender and assume the debt.Otherwise the transaction here might be voidable or void if the person had no legal authority to accept it.Normally this requires the minister and the deacons or board to consent to it and then to contact the lender involved.

I am not sure that the gift could be accepted by the church here without a minister and board authorizing it.The trustee would have the burden to insure that there is proper authority for them to accept the gift and that authority to assume the loan that goes with it.The trustee has a fiduciary duty to ensure that the terms of the trust are properly carried out as well.

The trustee would be the one that would have to deed the property and responsible for ensuring that that there was proper acceptance by the minister or board.The trustee would be the one with personal liability to ensure all of this was done properly.The trustee can be sued for failure to properly carry out the term of the trust and their fiducary duties.
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Customer: replied 4 years ago.

Thank you I was thinking the same thing but not sure.

I appreciate the chance to help.Thanks for the rating.