What are my options if our house mortgage is on my ex-husband name and he recently passed away? 17 Answers as of November 19, 2013

My ex-husband and I had a home where the deed was in both of our names, but the mortgage is in his name only. He died a week ago and I'm not sure what I can do with my home. I cannot afford to pay the payment, and was told I could not sell or auction it off because the mortgage was only in his name. Is that correct? I've also been told if I make any kind of payment at all, then I will be liable for the rest of the loan balance. If I choose to let them foreclose on the house, how long do I have before I have to move out? If someone could get back with me as soon as possible, I would sincerely appreciate it. Thank you so very much for your help. I make just right at $20,000 per year and simply do not have the money to pay an attorney.

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Durham Jones & Pinegar | Erven Nelson
You need to start with a probate estate for your deceased husband. The estate could sell the house with court approval. The mortgage would be paid off from the funds of the sale.
Answer Applies to: Nevada
Replied: 11/19/2013
Law Office of Pamela Braynon | Pamela Y. Braynon
The mortgage company is only interested in the mortgage being paid. Because the house is the collateral for the loan, I. e., mortgage, if it is not paid, the mortgage company will foreclose and will be sold on the ?courthouse? steps. That process can take quite a bit of time, depending on courts? dockets and backlog, once the mortgage company files for foreclosure. Was the house purchased while the two of you were married or was it purchased prior to your marriage? If so it becomes a part of your ex-husband?s estate. The estate will have the responsibility of paying the mortgage. Which in turn means the personal representative can collect rent from you. I can go on and on with different scenarios that could affect your outcome on this. See your local legal aid in the county where you reside and they can take on your case. S
Answer Applies to: Florida
Replied: 11/6/2013
The Law Office of Darren Aronow, PC
The Law Office of Darren Aronow, PC | Darren Aronow
If they have not started a foreclosure then it would take anywhere from 18 to 36 months generally.
Answer Applies to: New York
Replied: 11/5/2013
Law Ofices of Edwin K. Niles | Edwin K. Niles
We can't help wondering who is giving you all this (bad) advice. 1. Clear title by recording an affidavit of death (this can be done as part of the sale escrow (if you sell.) 2. Assuming there is equity (meaning the value of the house is greater than the loan balance) list the property for sale with a broker familiar with your ?hood. They won?t be able to complete a foreclosure for several months minimum, so you have time. 3. If there is no equity, you have two choices: Just live there rent-free as long as you can; many times a foreclosure can take 6 or 9 months to complete. However, this will be a big negative on your credit score, if that?s important. Or, you can level with the bank and try to get them to agree to a ?short sale.? Your broker can do this. This will also have an effect on your credit score. 4. Another option might be to rent out a room or two; the usual rent is around $500 per room, depending on area. You could do this and try to make ends meet, or to build up a reserve of cash if you choose the first option under no. 3 above.
Answer Applies to: California
Replied: 11/4/2013
Frederick & Frederick PLC | James P Frederick
If you cannot afford the payments, then you need to sell the home or the bank will foreclose. If you are an owner on the title of the home, you can sell it. If the sales price is not enough to pay off the bank, however, the bank will need to approve the "short sale." They may or may not do this. If you do not pay the mortgage, the bank will foreclose. This can take as short as a few months or as long as a couple of years. There is a six month period after the foreclosure where you can remain at the property, during what is called the "redemption period." Whether or not to keep the home depends on the equity and its value. Whether or not to try to sell depends on some of the same issues.
Answer Applies to: Michigan
Replied: 10/31/2013
    James Law Group
    James Law Group | Christine James
    If there is equity in the property, make the payments and put the house on the market to sell it. It is not true that if you make a payment it obligates you to pay the balance of the loan. Keep in mind 1/2 of the equity goes to your ex-husband's estate, but something is better than nothing. If there is no equity, let it go into foreclosure. It is impossible to say if you will have 3 months or a year, it depends upon how aggressive the bank is in their foreclosure on the house and how far behind the payments are now, if at all.
    Answer Applies to: California
    Replied: 10/31/2013
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    "I've also been told if I make any kind of payment at all, then I will be liable for the rest of the loan balance." Whoever told you this is wrong. Do not ever listen to this person's advice again. It is stupid. How did you hold title? a. "husband and wife as community property?" b. "husband and wife as community property with right of survivorship?" c. "husband and wife as joint tenants?" d. "husband and wife as tenants in common?" Each of these is different. Did your husband have a will? If b or c, the house is yours and you should sell it. If you can keep up some or all of the payments until it is sold, that will avoid penalties and give you extra time. If a or d, and your husband had a will leaving the property to you, then you need to do a spousal property petition. If a and he had no will. then also you need to do a spousal property petition. If d and he had no will and is not survived by any descendants or ancestors (children or parents), then also you need to do a spousal property petition. Many lawyers, including me, under the circumstances would take this case and wait to be paid until the property can be sold. And that is definitely true if probate is necessary.
    Answer Applies to: California
    Replied: 10/31/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Someone should actually review the exact circumstances of the mortgage and the deed by which you took your interest in the house; it is possible that the mortgage company screwed up, and you're actually not liable on the mortgage. However, almost always this would be a case of your ex-husband having the mortgage first, and then deeding an interest in the home to you. If that's the case, then you took your interest in the home subject to the mortgage, and therefore the mortgage company could foreclose your interest in the place along with your husband's. You might see if Legal Aid could help you, or if there is a law school nearby they may have a legal clinic where students can look at legal problems. What did your divorce judgment say about the house? It may be important. You can sell the house; you will need to petition for probate, or work with your ex-husband's personal representative. The mortgage balance would be paid in escrow if you sell. If you do not pay, and they foreclose, the time it takes will vary. In practical terms, they can't do it in much less than six months. But work with the lender, you may be able to cut a deal with them to deed the house back (which softens the hit on your credit) and you may be able to arrange for "cash for keys:" they would pay you to be out by a date certain, leaving the place clean and in good condition. The more I think about this the more complicated it seems. Definitely talk to Legal Aid; even if they can't help, they might know of some resources you can turn to. And definitely check into a legal clinic at the law school, if there's one close. Or, call the Oregon Attorney General's office there's all kinds of help for people facing foreclosure, and they may be able to hook you up with some assistance.
    Answer Applies to: Oregon
    Replied: 10/31/2013
    Janke Legal Consulting | Bruce C. Janke
    Take a close look at the grant deed by which you acquired title to the home. Assuming that you and your late husband held title as "joint tenants," you became the sole owner of the home upon your husband's death. All you have to do is record an Affidavit of Death of Joint Tenant, with a certified copy of death certificate attached, at the County's Recorder's Office. (Form attached). At that point, you can sell the house, even though the mortgage is in your husband's name alone as long as you are able to sell it for a price that would be enough to pay off the loan. If you are able to sell the house, you should definitely do so rather than allow it to go into foreclosure. You don't need an attorney. Rather, you should immediately consult with a real estate broker about this (the broker will not charge you anything because he/she will be hoping to get the listing if you decide to sell). If the house is "under water" (loan balance exceeds market value), you would have to get consent from the lender to do a "short sale," meaning the lender agrees to accept the sale price in satisfaction of the mortgage, even though it is less than the balance owed. But, as explained below, you are not personally liable for the loan, so a foreclosure will not affect your credit rating. Therefore, if the house is underwater and you cannot afford the payments, there is no point in going through all the trouble of a short sale. Again, you should really discuss this with a real estate broker. In the unlikely event that the two of you owned the home as "tenants in common," then your husband's share of the ownership passes to whomever he left it to in his will. If he died without a will, then his share goes to his legal heir, which means you. But in that case, you would have to file a probate proceeding to have your ownership of his share confirmed to you by the court. If your husband left his share of the house to you by way of a trust, all you have to do is record an Affidavit of Death of Trustee. If you know you cannot afford to continue the payments, there is no point in making any payments. But even if you do make payments, you are not personally liable for the mortgage balance. If the mortgage was a purchase money loan in California, then you are protected by the antideficiency law, which states that the lender is limited to foreclosing on the house and cannot sue you personally for any deficiency (difference between loan balance an price received at auction after foreclosure). And even if the mortgage does not qualify for antideficiency protection, you are not personally liable because you did not sign the promissory note. If there is no possibility of selling and foreclosure is unavoidable, then instead of just walking away, you should negotiate a "cash for keys" deal with the lender. Many lenders will pay moving expenses or other substantial sums if the owner voluntarily vacates in order to save the time and cost of foreclosure. You can also negotiate the time you will be allowed to move out.
    Answer Applies to: California
    Replied: 10/31/2013
    O'Keefe Legal Services, L.L.C.
    O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
    In Maryland, you may have several alternatives to foreclosure available, such as modifying the loan or selling the property. You may be able to find free help through the MD HOPE Initiative (see http://mdhope.dhcd.maryland.gov/Pages/Home.aspx) or MVLS and the Foreclosure Prevention Project (see http://www.mvlslaw.org/).
    Answer Applies to: Maryland
    Replied: 10/31/2013
    Law Office of Nathan Wagner
    Law Office of Nathan Wagner | Nathan J. Wagner
    It sounds like you got some misinformation. You can sell the house even if you're not on the mortgage (but you will have to pay off the mortgage loan from the sale proceeds). Making a mortgage payment will not make you liable for the balance of the mortgage loan. The first thing you should do is find out whether your ex-husband's interest in the house passed to you or to someone else. Does the deed say you were joint tenants with rights of survivorship? You may be able find a local probate attorney who will wait to take their fee when the house is sold.?
    Answer Applies to: California
    Replied: 10/31/2013
    Donald T. Scher & Associates, P.C.
    Donald T. Scher & Associates, P.C. | Donald Scher
    Depending upon how you hold title, you may be able to sell the home right now, or you may have to open a probate case to gain full title and ownership of the property. Just because you are not named on the mortgage loan, you are not prohibited from taking any action that an owner can take. Making a loan payment does not obligate you to pay the loan, however, you cannot sell the house or refinance without paying off the old loan.
    Answer Applies to: Arizona
    Replied: 10/31/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    Let the house go to foreclosure; it will take about five to six months before you have to move. Yes, don't make any payments, or pay any other costs, except your utilities.
    Answer Applies to: California
    Replied: 10/31/2013
    Victor Varga | Victor Varga
    You can pay the mortgage and the bank won?t do anything as long as the monthly payment is being made. They don?t care who is paying, as long as it is paid. And no, just making payments does not legally obligate you on the mortgage. If you cannot pay it, then you have no choice but to sell. As your name is on the deed, you can sell it. The outstanding mortgage will be paid through settlement. As for letting them foreclose, which is a last case scenario which should be avoided at all costs, it depends on the county where the property is located. Courts move at different speeds depending on the county.
    Answer Applies to: Maryland
    Replied: 10/31/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    I need more facts, but if all is "normal" and it was in joint names the house is yours at his death and the mortgage is a debt of his estate. You really need an attorney to look into the details to determine if the mortgagee's lien is still valid against the property. That should not be expensive, but cannot be free, as attorneys have to make a living as well.
    Answer Applies to: Michigan
    Replied: 10/31/2013
    Law Office of Thomas C. Phipps | Thomas C Phipps
    If they foreclose, you would have probably three to four months before they could get you out.
    Answer Applies to: Missouri
    Replied: 10/31/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    You need to speak with an attorney. I suggest that you contact the legal Aid center in your area to see if you qualify for a pro bono attorney.
    Answer Applies to: Nevada
    Replied: 10/31/2013
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