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Ask Ely Your Own Question
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102496
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My father passed away and had a reverse mortgage on his home.

Customer Question

My father passed away and had a reverse mortgage on his home. He is the sole name on the deed. His elder sister, age 92, still resides there. Can she stay, or what action is necessary?
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Ely replied 2 years ago.
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. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry for your loss. Can you please tell me:
1) Did he have a will, or not? If he had a will, who receives the home?
2) Has probate been opened for his estate, or not?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 2 years ago.
My father did have a will, and since my mother predeceased him, his assets go to me.
I am the only child of my parents.
Probate has not been opened.
He passed away in June, 2014.
Expert:  Ely replied 2 years ago.
Thank you.
Opening Probate
The first thing that someone in your situation wants to do is to probate his estate. Why? 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.
It is okay that the Executor is also the primary beneficiary.
Elder Sister
Once the home is in one's name, she becomes a "tenant at sufferance." A tenant at sufferance has few rights, but one of these rights is to be evicted. So in other words, one cannot simply physically kick her out of the home. She must be evicted like a tenant who has not paid rent. If after the quick eviction hearing she still does not leave, then, one can get a Writ and have the authorities forcibly relocate her.
However, many tenants at will simply LEAVE once they are given notice that they will be evicted if they do not, since they have really no defense to an eviction.
So here, you may:
1) Give her notice to leave and if she does not;
2) Evict her as though you would a tenant; and
3) Have the authorities remove her by force if she still does not leave; and
4) Change the locks.
Again, the majority of tenants at will shall leave upon notice, or shortly after an eviction is filed.
How much notice is necessary is unclear, but 10 days is a good rule of thumb. It sounds like you already sent one certified letter, but this did not give an "end date." Another should, would serve as notice, and may give 10 days (or whatever is reasonable - 10 days is good). Of course, it may be longer - it is up to you.
Reverse Mortgage
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. 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 him. They may not want to refinance the property into your name.
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."
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