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I have a quick question. My husband grandmother is wanting…

Customer Question
Hello, i have a...

Hello, i have a quick question. My husband grandmother is wanting to leave her house and property to him when she passes in a will, but she is still paying a mortgage and she doesn't think she will be able to pay it off when it comes to that time. Now someone told him he will not be able to take over the mortgage when she passes even though it was left to him in her will because the house would go into probate. He can afford it but when she passes will the house go into probate or will he be able to take over the loan if needed after she passes if left to him in his grandmothers will?

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

New Mexico

Lawyer's Assistant: Has any paperwork been filed?

No not as of yet. She has the will filled out but we want to make sure everything is legal.

Submitted: 9 months ago.Category: Real Estate Law
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Answered in 5 minutes by:
11/26/2017
Real Estate Lawyer: P. Simmons, Lawyer replied 9 months ago
P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 37,961
Experience: 12+ yrs. of experience including real estate law.
Verified

Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

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Real Estate Lawyer: P. Simmons, Lawyer replied 9 months ago

Can you tell me

1. How much is the home worth (total value if sold today)?

2. How much is the mortgage on the home currently?

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Customer reply replied 9 months ago
Thank You! The total loan amount due is $97k. The mortgage is $1,045. the last appraisal was 2 yrs ago and it was valued at 230k
Real Estate Lawyer: P. Simmons, Lawyer replied 9 months ago

Thanks
This would go to probate then...that is, the value of the home, after deducting the mortgage, is still over $100K...so there would need to be a probate.

But that does not mean he can not keep the mortgage....he can. While it is true that generally speaking, if a person dies and they leave their home to someone and the home has a mortgage, the lender can "call" the mortgage (demand it be paid immediately). However, under federal law ( Garn-St. Germain ), a lender cannot enforce a due-on-sale clause for “a transfer where the spouse or children of the borrower become an owner of the property.” This will include grandchildren

So there will be a probate...but he will be able to keep the mortgage

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

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Real Estate Lawyer: P. Simmons, Lawyer replied 9 months ago

Hi
Experts on this site (myself) are compensated ONLY if the customer (yourself) "rate" or "accept" the answer.

Do you have more questions regarding this?

Thanks for your understanding
Phil

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