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Assuming Mortgage, can a bank automatically default after a death?

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Asmodai66
Established Member

Assuming Mortgage, can a bank automatically default after a death?

     I am getting mix information on this issue. My mother passed away a year and half ago. I've been paying the monthly payments on time and haven't been late once on her mortgage. The title of the house is in my name but the mortgage is in her name still even after a year. I just found out the HAMP incentive ends next year, which gives me $5k debit to the loan. I read and heard the bank can automatically default on the mortgage anytime, because my mom has passed. I also read they can't automatically default as long I am making payments every month regardless how long. 

 

I am trying to hold off until the HAMP ends before I refinance but afraid the Bank can automatically default on the loan. I am just debating if I should assume/refinance the mortgage before the FED raises interest rates. Plus I am trying to buy a 4 plex next year using a VA Home loan, but now learning HAMP ends next year, complicate things. I am paying for a mortgage that is not in my name and not even on my credit either. Just need some guidence on this. 

Message 1 of 13
12 REPLIES 12
iv
Valued Contributor

Re: Assuming Mortgage, can a bank automatically default after a death?

You should be asking a real estate and/or probate attorney about this.

 

But speaking generally, in cases like yours (inheriting the title, continuing to make loan payments), no, the lender cannot automatically call the loan. (And even if they were allowed to... as long as payments continued, they wouldn't want to call it.) But just continuing to make payments is NOT the same thing as legally assuming the loan.

 

Talk to an attorney.

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Message 2 of 13
Asmodai66
Established Member

Re: Assuming Mortgage, can a bank automatically default after a death?


@iv wrote:

You should be asking a real estate and/or probate attorney about this.

 

But speaking generally, in cases like yours (inheriting the title, continuing to make loan payments), no, the lender cannot automatically call the loan. (And even if they were allowed to... as long as payments continued, they wouldn't want to call it.) But just continuing to make payments is NOT the same thing as legally assuming the loan.

 

Talk to an attorney.


Well, that's at least good news that they cannot automaticlaly default on the loan regardless how long I pay on it in my moms name. So I can wait next year with no worries. I'm already tied with two attorneys on the same estate. I want to assume it next year but at the same time I want to buy a 4plex.

Message 3 of 13
pipeguy
Senior Contributor

Re: Assuming Mortgage, can a bank automatically default after a death?


@iv wrote:

You should be asking a real estate and/or probate attorney about this.

 

But speaking generally, in cases like yours (inheriting the title, continuing to make loan payments), no, the lender cannot automatically call the loan. (And even if they were allowed to... as long as payments continued, they wouldn't want to call it.) But just continuing to make payments is NOT the same thing as legally assuming the loan.

 

Talk to an attorney.


+100 - very good answer.

 

The home affordable modification program had to do with refi options due to the mainly subprime mortgage meltdown of 2006-2009 and even with a refinanced "HAMP" loan, as long as payments are made on time no one cares who makes the payments. That said, probate is a whole different picture. You said your name is on the title, but not the mortgage. Assuming that you had rights of survivorship as a co-owner, probate rules generally state (varies some by state law) that valued assets must be sold for fair market value and that cash and other assets pass to heirs "tax-free" (value limitations, etc) but the estate pays any tax and distributes post-probate "net assets". 

 

In your situation, I assume you are also an heir, the house would have to be sold and you would be paid any excess value outside of the estate because you are a co-owner. There are too many factors and unknowns to be specific, but yes it's possible to talk to the mortgage holder and offer to assume the mortgage, which would actually be a new loan in your name. To do this, you need to have the executor of the estate coordinate with you as the listed owner and the note holder (mortgage). There is no reason that an heir cannot "purchase" non-cash assets from an estate as long as the "fair market value" is maintained. I would also assume that since your name is NOT on the mortgage that any provision(s) having to do with the mortgage and any specific HAMP modifications pertaining to the "life of the signer" have no bearing (advantage or disadvantage) on you as a co-owner. 

 

The problem is not that the loan was once modified under home affordable modification program, it's that the estate is now responsible for any debts including the mortgage balance (btw, you should NOT be making any payments, that's the responsibility of the estate). As someone with an equity share in the property (listed owner) but no mortgage responsibility - because you are not on the mortgage - you have very little control over anything during the probate process.

 

I should also add that once a lender is notified that the probate process has been filed, everything basically stops as far as paying credit cards, subscriptions, etc. The estate pays for everything including "utilities, taxes, etc" on real estate to preserve value. The estate can of course, rent the property pending the sale of the asset. 

 

As "iv" said, talk to an attorney and hopefully, it's the attorney that is handling the estate.    

Message 4 of 13
Asmodai66
Established Member

Re: Assuming Mortgage, can a bank automatically default after a death?


@pipeguy wrote:

@iv wrote:

You should be asking a real estate and/or probate attorney about this.

 

But speaking generally, in cases like yours (inheriting the title, continuing to make loan payments), no, the lender cannot automatically call the loan. (And even if they were allowed to... as long as payments continued, they wouldn't want to call it.) But just continuing to make payments is NOT the same thing as legally assuming the loan.

 

Talk to an attorney.


+100 - very good answer.

 

The home affordable modification program had to do with refi options due to the mainly subprime mortgage meltdown of 2006-2009 and even with a refinanced "HAMP" loan, as long as payments are made on time no one cares who makes the payments. That said, probate is a whole different picture. You said your name is on the title, but not the mortgage. Assuming that you had rights of survivorship as a co-owner, probate rules generally state (varies some by state law) that valued assets must be sold for fair market value and that cash and other assets pass to heirs "tax-free" (value limitations, etc) but the estate pays any tax and distributes post-probate "net assets". 

 

In your situation, I assume you are also an heir, the house would have to be sold and you would be paid any excess value outside of the estate because you are a co-owner. There are too many factors and unknowns to be specific, but yes it's possible to talk to the mortgage holder and offer to assume the mortgage, which would actually be a new loan in your name. To do this, you need to have the executor of the estate coordinate with you as the listed owner and the note holder (mortgage). There is no reason that an heir cannot "purchase" non-cash assets from an estate as long as the "fair market value" is maintained. I would also assume that since your name is NOT on the mortgage that any provision(s) having to do with the mortgage and any specific HAMP modifications pertaining to the "life of the signer" have no bearing (advantage or disadvantage) on you as a co-owner. 

 

The problem is not that the loan was once modified under home affordable modification program, it's that the estate is now responsible for any debts including the mortgage balance (btw, you should NOT be making any payments, that's the responsibility of the estate). As someone with an equity share in the property (listed owner) but no mortgage responsibility - because you are not on the mortgage - you have very little control over anything during the probate process.

 

I should also add that once a lender is notified that the probate process has been filed, everything basically stops as far as paying credit cards, subscriptions, etc. The estate pays for everything including "utilities, taxes, etc" on real estate to preserve value. The estate can of course, rent the property pending the sale of the asset. 

 

As "iv" said, talk to an attorney and hopefully, it's the attorney that is handling the estate.    


       I am the executor of the estate and already have an attorney handling my mom's estate, he told me to keep making the monthly payments on the mortgage so it won't go into default. I get two different answers from people locally and online that the bank can or can't default on the mortgage anytime, but makes no sense when money is still rolling in. Bank doesn't want the house, because it's a liability. Since she has died I've been making monthly payments on it for a year and a half ago. My mom had nothing to her name except the house. She had no will, barely any money in her 401k which went to the funeral cost. There is nothing in the estate except just the house. I know I am not obligated to make the payments but I am doing it so it won't go into foreclosure obviously. What is worse, my mother passed away in the house, it had to be gutted, bio cleaned. The insurance company paid for it but weren't willing to pay for restoring it,  so now I am tied in a lawsuit against them for breach of contract. It is a mess. 

 

The mortgage does have an adjustable rate, the interest rate will increase to 3% this fall. I ordered a final payment and loan agreement on what my mom signed, so might be 2% on the statement but could be way higher in other fees that don't meet the eye. The bank has asked me that I want to assume the loan, basically refinancing it. They even told me once I refinance, the HAMP disappears and this is why I am trying to hold it off. To be honest $6k can be very useful like put towards fixtures of the house. Anyways now I question if I should refinance end of the year or wait out till next year, then refinance it? That's why I worry if I wait till next year, my mom's estate will finally be closed by then but the risk of the bank automatically defaulting on it. Just I have other goals like wanting to buy a 4 unit but tied down to this mess.

Message 5 of 13
Anonymous
Not applicable

Re: Assuming Mortgage, can a bank automatically default after a death?

 

Oddly, I'm in a similiar boat over here. My mom passed away about 8 months ago. I am the adminstrater of the estate and I am currently making the mortgage payments on and living in a home my mother owned. Here's what I've learned:

 

The Garn-St. Germain Depository Institutions Act of 1982 protects family members inherititing residental property with mortages. You can do a quick Google search to read a bit more about this, but so long as your'e making payments and maintaining the mortgage, my understanding is that the bank cannot legally call the loan or put it into default simply because your mother passed. This doesn't apply to commercial property or loans related to commercial property; it specifically protects children/spouses that have inherited a home due to a death in the family. I have a great probate/estate lawyer but I've also hired a great real estate lawyer and find that it's helpful to have that kind of spectrum of advice. 

 

Hope this helps a bit. Sorry you're going through it.

Message 6 of 13
pipeguy
Senior Contributor

Re: Assuming Mortgage, can a bank automatically default after a death?

I settled both my father's estate in 1995 (everything went to my mother) and my mother's estate in 2015-16 (everything went to the children). Two of my brothers lived in the house until it had to be sold - it was the primary assets of the estate so I have some understanding of what you are going through. 

 

As far as any specific HAMP modifications, that program was slated to expire at the end of 2017. Congress extended the program through 2018, but basically, that is NOT a longterm advantage because it's ending. As executor and heir (only?) you have two choices, sell the house and pocket the equity as an heir (after going through probate) or take the bank up on a refinance where your name is on the mortgage and deed. If the bank is getting paid they are not going to force a sale, but the probate process will since all assets and liabilities need to be "discharged". 

 

Being on the deed means you are the owner of the property, NOT being on the mortgage means the estate needs to settle debts against assets. If the house was paid for title/deed would transfer to the surviving owner but an open mortgage complicates that process. 

 

My parents home was only in my fathers' name but he willed all his assets to my mother. When I had to settle her estate, we had to get a court-approved modification reopening my fathers' estate to transfer the deed as inherited property to my mother even though she was now deceased, before we had clear title to settle the sale of the house during probate.

 

It's completely up to the bank as to what terms they allow the mortgage to be assumed  - sounds to me like they are being reasonable. You do have an advantage if the real estate has negative equity - you can walk away without it affecting your credit because you are not on the mortgage note. 

 

In my opinion, the original HAMP modification is to a loan that you don't have an obligation to pay nor is it something you should worry about. I do not think you are entitled to any original loan modification (you are NOT on the mortgage that was modified).

 

If the property has negative equity, or in other words, will sell for less than the mortgage balance you are in a great position as far as talking to the bank. As an example, an appraisal that says the house in its current condition is worth $150,000 and the mortgage balance is $185,000 as the executor you can tell the bank take it, it's all yours (kind of like a quit claim) OR as the "owner" I'll buy it from you for $140,000 with no agent commissions, or advertising costs to the bank providing you finance it at market rates. The bank will squirm and refuse but it's the best solution for them and they'll make a deal - think of it as a probate modification. The bank will treat it as a short sale, but it won't ding your credit since you are under no obligation to pay a penny. You can try this tactic even if there is a small amount of equity since there are thousands of dollars in costs for listing/selling/advertising/recording/ carrying a defaulted (quit claim, short sale or foreclosure) mortgage. 

 

Your attorney should take care of all of this, it's a PITA but it's a mostly logical process of closing out assets and debt with the balance going to the heirs (and a bit to the attorney). 

Message 7 of 13
JVille
Valued Contributor

Re: Assuming Mortgage, can a bank automatically default after a death?

99.9% of mortgages are not assumable and the bank is not required to allow any assumption. In fact when the ownership changes according to the terms of the Trust Deed the Loan is Due and must be paid off. Sold or refinanced.
When there has been a death typically the bank will look the other way for a reasonable time in order to settle the estate and sell the home.
Message 8 of 13
Kree
Established Contributor

Re: Assuming Mortgage, can a bank automatically default after a death?

First, attorney.

 

Second, my understanding is that as long as the estate is open, and you are the executor. You are not paying your mother's mortgage, the estate is paying the estate's mortgage.  They should not be able to default until the estate has been settled/closed.

 

 

Message 9 of 13
JVille
Valued Contributor

Re: Assuming Mortgage, can a bank automatically default after a death?

Ditto
Message 10 of 13
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