QUESTION
Does it make us the rightful decision makers about the house since it's our money paying for it and the mortgage has still a good 20 years on it?
Asked on Mar 28th, 2014 on Estate Planning - Oregon
More details to this question:
Decease estate and will preferences for house still be mortgaged. My mother recently passed away and left a will stating the disposition of her house that is still mortgaged. She basically left the house to myself and my disabled brother to live in and be the lawful tenants or whatever. My Mom stated in her will that my brother and I have the house. The bank does not want to rewrite the loan into either of our names and are happy to leave the loan as is long as me and my brother keep the payments up and we are doing that. I believe my sisters as executor do not have the power to what to do with the house, who else we may want to live with us, how we run it or basically live as the owners and responsible landlords of the house based on my Mom willing me and my brother the house. My sisters are not agreeing with what’s in her will but I feel it does not mention my brother were to co-own the house with any of our siblings that do not have responsibility to pay for it as my brother and I do. My sisters are the executors of my Mom's estate but her will does not offer any statements as to any other siblings’ rights to the house other than my brother and I directly. Do my sisters or any other siblings have claims to the house that my Mother did not indicate even though two of them are executors of her will and my Mom again made it clear that she wanted my brother and I to be able to live/stay in the house only and be responsible for it? I believe her will to read as my sisters only responsible her estate concerns non related to the house. My brother and I will be/are making the bulk of the payments for rest of a 30 year mortgage even though it will still be listed to my Moms estate as the property owner. Mom only paid while alive about 5 years on the mortgage.
9 ANSWERS
Edwin K. Niles
Is there an open probate? If not, why not? If so, ask the lawyer handling. The person named in a will is not the executor until the probate is open and there is a court order.
Answered on Apr 02nd, 2014 at 8:20 PM
Commercial & Bankruptcy Law Attorney serving Powell, OH
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Ronald K. Nims
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If your mother's will says that you get the house, then the executor has no right to interfere with that, except if your mother's debts require the sale of the house to pay off her creditors. I'm very much surprised that the bank doesn't want to have you sign a new mortgage - if you merely step into your mother's mortgage and you stop paying, the bank can foreclose on the house but can't go after you.
Answered on Apr 02nd, 2014 at 8:02 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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The exact terms of the Will control. The estate will not remain open for very long. There must be a transfer of the real property according to the terms of the Will. Your description seems to indicate that you and all of your siblings will be tenants-in-common, each owning an equal percentage of the ownership interest but that you and your brother were granted life estates provided you continued to pay the mortgage, taxes, etc., and maintain the property. The Will is a matter of public record. You should have a copy of the Will reviewed by a lawyer to determine what your exact rights in the real property.
Answered on Apr 01st, 2014 at 7:43 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Your summary does not make a lot of sense. You say that your mom's estate would still be listed as the owner of the property, which makes even less sense. If you are paying for it, then I see no reason why you should agree to have anyone else share in the ownership. I also see no reason to keep an estate open for 25 years to hold property that it is not entitled to own. Unless there is something in the Will that you have not told us, I do not think this sounds right, at all. Provided that the Will says that the property goes to you and your brother, then the Personal Representatives should deed the property to you and your brother, out of the estate. Your ownership would be subject to the mortgage, as you know. There is nothing wrong with that, and there is no reason why you need to refinance, unless it would be to your advantage to do so. You mention rental and tenants and landlords and I have no idea what you mean by that. As owners, if you wanted to rent out all or a portion of the house, you would likely have the right to do that, subject to local ordinances. Why your siblings would have any interest in the property is not clear. You may want to have an attorney review the Will to determine what your rights really are.
Answered on Apr 01st, 2014 at 4:50 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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You need the assistance of a probate litigation attorney to unravel your problem with respective family members.
Answered on Apr 01st, 2014 at 4:50 AM
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It is impossible to say without reviewing the terms of the will and trust.
Answered on Apr 01st, 2014 at 4:50 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If the will specifically devises the house to you and your brother, then that is what must happen. The personal representatives cannot change that, or go against what is in the will, without petitioning the court to make that change. If they petition the court, you will get notice and an opportunity to be heard. You and your brother will take the house subject to the mortgage, so that, if you don't make the payments, the bank can foreclose.
Answered on Apr 01st, 2014 at 4:49 AM
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You need an attorney to review the probate file and Will. You may be wasting your money. Without reviewing all the paperwork, its anyone's guess. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Apr 01st, 2014 at 4:49 AM
If your mother clearly left the property to you and your brother in her will, then the title and deed should be transferred to the two of you. An executor is responsible for carrying out the terms of the will to the extent that it is legally possible. However, if the estate has significant debts, payment of those debts takes priority, even if it means selling the house and leaving you and your brother with no inheritance. And if you are inheriting the house only for the term of your life (a life estate), you have an obligation to keep the house in the best condition possible for whoever gets the house after you.
Answered on Apr 01st, 2014 at 4:49 AM