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My husband passed last year, and im trying to get the home…

Customer Question
My husband passed last...

My husband passed last year, and im trying to get the home in My name

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

Georgia

Lawyer's Assistant: Has any paperwork been filed?

I had met with a lawyer last year, but he didn't respond back with me!

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That's all i can think of right now!

Submitted: 7 months ago.Category: Real Estate Law
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11/27/2017
Real Estate Lawyer: Ely, Counselor at Law replied 7 months ago
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 103,582
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only 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. You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.

I am sorry to hear about this situation. Please tell me:

1) Does the home have a mortgage?

2) How much was the total amount of his separate estate worth, approximately?

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Customer reply replied 7 months ago
We have a mortgage, and the total cost around 180, 000
Customer reply replied 7 months ago
a mortgage and total cost worth 180,000
Real Estate Lawyer: Ely, Counselor at Law replied 7 months ago

Thank you. 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 the names of the inheritors.

If there was a Will, the beneficiaries are decided per the Will. If there was no will, the beneficiaries are decided by default succession law of the state.

You can take his name off the title via probate. 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:

http://articles.chicagotribune.com/1998-12-05/news/9812050144_1_due-on-sale-clause-due-on-encumbrance-clause-germain-law

"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."

So someone in your situation may need to file a probate action to have this matter settled.

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Customer reply replied 7 months ago
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