Roger : Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question. I'll be glad to assist.
Roger : Is the home the marital residence?
Roger : Ok. Was the home purchased before or after the marriage?
purchased before the marriage and paid for before the marriage. Stipulation in the will that husband may reside in the home if wife preceeds him in death . At such time that he cannot maintain the house or becomes deceased, the wife's children are entitled to the home.
Roger : Ok. Thanks.
Roger : Because this property is the marital home, the husband would have an equitable interest in the home even if his name is XXXXX XXXXX the deed.
Roger : How much interest or what percentage is something that I nor anyone else - but a judge - could tell you.
Wife is now ill and in a facility. Ongoing health care is a concern. Husband suggested that he try to obtain a reverse mortgage against the house to cover expenses. Question, is he entitled to do that since house is not in his name
Roger : The husband could not do that without the wife's consent/signature because she owns the house on paper, and the husband's interest is not established/valued.
Ok, that is what I thought. even thought he resides there and IF he has a PoA ( as does the daughter) to manage her finances, he cannot apply/obtain a reverse mortgage on a property he does not own. His name is XXXXX XXXXX the deed. He would need her consent and signature on documents?/ Is that correct?
Roger : Yes, that's right.
thank you very much. This has been very helpful .............
Roger : Sure. Please let me know if you have any additional questions.
Ok, thank you. Have a good evening :-)
Roger : You too.
Roger : Also, IF he did have a POA, it would be possible for him to do this if the POA allowed him to borrow money, etc. However, if he has no POA, then no lender should loan him anything without her signature.
hmmm. the PoA allows him to open, maintain or close bank accounts, make deposits or withdrawal, obtain statements, drafts, money orders, borrow money and manage all aspects of the loan process, perfome acts to transfer, sell, depositany note.
Does that give him authority to do the reverse mortgage w/o her signature?
Roger : It just depends on what the particular one he has says.
Roger : IF the POA he has says he can borrow money on her behalf, then he could sign her name and get a reverse mortgage.
Roger : But, the problem he would face is whether or not this is in HER best interest.
Roger : IF he's doing it to get money for himself or for some purpose that is not to benefit her, he would likely be setting himself up to be removed as POA.
The PoA says he "can borrow money from any banking or financial institution if deemed necessary by my Attorney-in-fact, and to manage all aspects of the loan process, including the placement of security and the negotiation of terms; "
Roger : Ok. If his says that, the he can borrow money - - which should include a reverse mortgage.
Roger : But, he would have to prove that the money borrowed would be for her benefit, not his.
that is concerning then................, because he does to have the means to maintain that type of loan if he should default on the payment. If that happens, then the home is lost correct? and would that type of loan be based on his credit since he resides in the home and has a lesser income than she does?
It would initially be for her benefit but her condition is terminal..........
Roger : No, the house wouldn't be lost - - but the debt would still be due.
Roger : If/when something happened to the wife, the lender would give the heirs the opportunity to retake the property by paying off the loan balance.
and would the children of the wife be responsible for the debt. If so and they could not pay, would the house be lost?
Roger : The loan could be based on hers or his, or just hers. ....
Roger : NO - the children nor any heirs would be responsible for the dbet.
Roger : *debt
Roger : If her children didn't want to pay off the debt to keep the property, then there would be no obligation to do so.
OK....... but you said the lender would give them ( the heirs/children) the opportunity to pay off the loan balance, If they could not, what happens to the house?
Roger : The lender would sell it in order to pay off the loan balance.
that is what I thought. OK , thank you very much. This has been very helpful!
Roger : Sure. Glad to help. Let me know if you have any additional questions.
OK, thank you...............:-)
Roger : No problem.