I Inherited a House - Do I have to Refinance the Mortgage?
No - in most cases. Mortgages generally contain "Due on Sale" clauses, which say that the lender can call the mortgage due upon transfer of property. However, federal law (12 USC § 1701j-3(d)) provides a number of exceptions (emphasis added):
(d) Exemption of specified transfers or dispositions
With respect to a real property loan secured by a lien on residential real
property containing less than five dwelling units, including a lien on the
stock allocated to a dwelling unit in a cooperative housing corporation, or
on a residential manufactured home, a lender may not exercise its option
pursuant to a due-on-sale clause upon—
(1) the creation of a lien or other encumbrance subordinate to the lender’s
security instrument which does not relate to a transfer of rights of
occupancy in the property;
(2) the creation of a purchase money security interest for household
appliances;
(3) a transfer by devise, descent, or operation of law on the death of a
joint tenant or tenant by the entirety;
(4) the granting of a leasehold interest of three years or less not
containing an option to purchase;
(5) a transfer to a relative resulting from the death of a borrower;
(6) a transfer where the spouse or children of the borrower become an owner
of the property;
(7) a transfer resulting from a decree of a dissolution of marriage, legal
separation agreement, or from an incidental property settlement agreement,
by which the spouse of the borrower becomes an owner of the property;
(8) a transfer into an inter vivos trust in which the borrower is and
remains a beneficiary and which does not relate to a transfer of rights of
occupancy in the property; or
(9) any other transfer or disposition described in regulations prescribed by
the Federal Home Loan Bank Board.
What if the home is currently in a living trust? Does the Garn - St. Germain Act still apply? If I am a relative inheriting a home upon the death of the borrower?
RESPONSE: Yes, it still applies.
If you inheirit a home and then divorce, is the home community property even if the spouse is not named as and heir?
RESPONSE: North Carolina is not a community property state. In North Carolina, if you inherit real estate and leave it in your name alone, the property is generally considered separate property so that it is not subject to division upon divorce.
My mom passed away 2 1/2 yrs ago. She deeded her property over to me, she had taken a home equity loan out, since I can find no lien on the property, do I have to continue paying on the loan?
RESPONSE: Have you checked the county Register of Deeds to see if there is a recorded deed of trust for the loan? If there is no deed of trust, you may not be responsible for paying the loan, but I recommend that you consult with an attorney to determine what obligation you might have.
I am the named beneficiary in my mother's will to inherit her house with a mortgage. I am not the Executor. Can I make the regular mortgage payments directly to the bank before the estate settles and I receive the deed? The Executor has not made the February, 2010, payment.
RESPONSE: Under NC law, the real property belongs to be beneficiary as of the time of the decedent's death, subject to the right of the executor to sell it if necessary to pay debts and expenses. You should be paying all expenses for the house. No deed will be issued to you - the will and the death certificate are the evidence of ownership.
My children, all young adults, just inherited a home from their father which still has money owed on it. The home is in Washington State. They wouldn't qualify to refinice the home. Do they have to sell it, or can they just take over the payments?
RESPONSE: Federal law allows them to just continue the payments. They do not have to refinance.
If the decedent's estate is insolvent, are the heirs of real property, in N.C., required to sell the property to pay creditors even though one of the heirs is currently living in the home and wishes to take ownership of the property as his primary residence?
RESPONSE: The administrator/executor must sell the house.
My husband inherited a home from his father which still has a mortgage of 80,000 on it. The home is worth 200,000, at this time the mortgage is more than we can comfortabley afford to pay each month. How would we go about refinancing? Would we be able to get a loan for more than the 80,000 because of the equity in the home? Must we wait until the will goes through probate to refinance?
RESPONSE: You will have to talk to a bank or mortgage broker about refinancing, but you will have to wait until the creditors claim period in the estate passes.
My ex-husband died, left two kids behind ages 22 and 18. They lived with him in North Carolina. The house has a mortgage balance and needs alot of work. If the bank forcloses on the house can the bank go back to their trust, established by him, for the outstanding balance.
RESPONSE: Probably not, but I would need more information to answer more definitively.
my dad past without a will, the house has a morgage on it, do I have to get morgage to keep it? I have been making payments on it since his death
RESPONSE: No, you can simply keep paying the current mortgage.
My friend passed away and had no children. I have known her for 27 years. She left me 8 rental properties. They all have mortgages on them. Do the mortgages transfer with the properties?
RESPONSE: Yes.
Do the transfers in this code section apply to title insurance policies?
RESPONSE: Not to my knowledge - I think that would be dealt with in the policy itself. If in doubt, I tell my clients to contact the title insurance company to see what, if anything, they need to do.
I got divorced in 2006. Was I told wrongly that I had to refinance the mortgage? I have read USC 1701j-3(d)(7) and it seems to apply to me. The rate was higher and of course there are fees.
RESPONSE: I don't know your exact circumstances, but it seems as though you may have been wrongly advised.
My wife was court ordered conservator over her father. She is also the trustee to his trust which only has one asset, his house. He recently passed, and my wife and siblings became beneficiaries to the trust. His estate is heavily encumbered with debt on the home, and various other legal obligations. My wife and I have agreed to purchase the home, covering the amount of debt, but it would require us to take out a new home loan. Siblings are fine with this. What is the best way for us to assume ownership that conveys clear title. Do we treat this as a straight purchase? Obtaining title insurance, etc
RESPONSE: Yes. If you must get a loan to purchase the property then a formal closing and title insurance will be required.
I live in Arizona. My mother passed away and the home I reside in is in her name, as well as the mortgage. I am one of six children and not the executor. Due to a bankruptcy I would not be able to refinance? I have made all payments, can I continue to make payments and just assume the loan or will I lose my home?
RESPONSE: Under federal law, you should be able to just keep making payments. However, you may need to make arrangements with your siblings to ensure that you have ownership of the home.
I live in North Carolina and my uncle recently established a life estate deed leaving me his house in the event of his death. He has suddenly take critically ill.The housed still has a 53,000 balance on the mortgage. In the event of his death what are my rights and what would I need to do to enforce them?
RESPONSE: You will automatically have 100% ownership in the house upon your uncle's death, and will be responsible for the payment of the mortgage. If you need further information, I recommend that you consult with a probate attorney.
I live in Maryland. My mother passed away (Oct, 2010). My sister and I are the sole inheritors. My mother's has an ARM mortgage that is set to change to fixed in April, 2011. My sister and I have our own mortgages; one of us has an ARM as well. Will we assume ownership as is - with the ARM? Will we have to meet the same borrower requirements should we seek to refinance? Will lender require payments through out the probate period or is there some kind of "freeze" until probate period is over?
RESPONSE: You will inherit the property with the mortgage "as is." You are not required to refinance, but if you do, it will be a standard refinance. You are required to continue with the regular payments.
My wife and her sister inherited a home from a relative. The home has a mortgage. The home needs considerable repairs. My wife and I are willing to make the repairs, but her sister does not have an interest in this. While we have the money to make the repairs and mortgage payments we do not have enough to pay the mortgage off. How do we show/process this so that the sister no longer has ownership? Given the repairs needed obtaining a loan to pay-off the mortgage is not an option.
RESPONSE: You will need to contact an attorney to make an offer of purchase to your wife's sister, and if she accepts, prepare the necessary paperwork and handle the closing.
My dad has put my name on a warranty beneficary deed to his home with a mortgage, in which I currently live and am making the payments. He has left my sister as executor of his will, she has no interest in the house. Can I continue to make the payments under the fed law and the house is mine or can my sister make me sell when our dad passes? We live in Missouri.
RESPONSE: I cannot answer your question without reviewing the deed. I recommend that you consult with a MO attorney.
Can one pay of an inherited mortgage if it has a prepayment penalty without incurring the penalty
RESPONSE: Not unless it is so provided in the promissory note.
I want to buy my mother's house from her estate and/or buy out the other six beneficiaries. I wrote up a standard agreement of sale for Penna and the executors accepted my offer and signed. I went to a lender to get a mortgage and they said it can not be a purchase with a traditional mortgage and I would have to refinance and buy out the other six since I can't buy a house from myself.They also said my signed agreement is meaningless..does that sound right? The deed is still in my deceased parents names.
RESPONSE: It sounds like the house may be in PA - if so you should have a PA attorney handle the transaction for you.
I inherited a house from my parents. There is still a mortgage on the house. I am currently living in the home and making the payments. Do I have to refinance or can I continue as I am doing. I will not qualify for a new loan. Does this federal apply to me?
RESPONSE: Yes. You do not have to refinance.
My friend and I are on the deed to our primary residence with rights to survivorship. The mortgage was in his name only. He passed away last month. Do I have to requalify for the mortgage or can I just keep making payments. I don't think I can qualify for a loan. Also we were in the process of a loan modification - what should i do. I'm nervous that I will lose the house.
RESPONSE: As a joint owner, you are not required to refinance and can continue just making the payments.
I live in California. My wife went through a divorce five years ago and quick claimed the property to her ex-husband. They were both responsible for the mortgage. He never re-financed the property since the divorce and recently died in an auto accident and did not have a will. Since my wife is legally responsible for the mortgage on her TRW, can she re-finance without being on the deed and waiting for the executor the estate to help her out?
RESPONSE: No - she has no ownership interest in the property.
I am in Washington State. My mom willed me her house that has a mortgage on it. Can I keep the house if I continue to make the payments? Does it matter which bank the loan is with? I may not qualify for a new loan as I have student loans and a vehicle payment. Also, it is a mnfg. home on property with the title removed. The land would appraise for more than what is owed on the mortgage. What options do I have? Thank you.
RESPONSE: Under federal law, you can continue to pay the mortgage and do not have to refinance.
Both of my parents passed away in Idaho last year and left their house (with mortgage) in a trust. I moved into the house and continued mortgage payments for most of last year. My brother (trustee) has agreed the house will become mine, but the title is still with the trust and not filed in my name. Can I deduct these mortgage interest payments on my 2010 and 2011 taxes? Can I file for homeowner exemption before the title is in my name? Thank you for this very informative article.
RESPONSE: I cannot answer with certainly without reviewing the trust, but generally you cannot deduct those payments unless you are legally obligated to pay them, which won't happen until the house is transferred to you. I believe the same is true for filing for the homeowner exemption.
Prior to my mothers recent death, she had my step-dad sign a quitclaim deed removing him from their house deed. The mortgage and deed was issued one year prior to the quitclaim deed, in both of their names, with a suvivorship title to the property.
To make matters worse, the property value is about half of the mortgage. Can my step-dad do a short sale after being removed from the deed? How can this property be sold?
RESPONSE: There are not enough details to be able to answer your question, such as if your mother had a will, and who her heirs are. I recommend that you consult with an attorney.
My grandfather quitclaimed his house to me just before his death. His will stated that I was to receive the house anyway. The house has a lien on it for a revolving account (like a HELOC)that he and my grandmother got in 1987. Can I just continue to make the payment, and keep the home? Am I protected or can they call in the note? Also they stopped sending bills, but they continue to call to get the payment. How can I make them send the bills so that I can make sure the payments are made timely?
RESPONSE: You can just continue to make the payments and keep the home. Getting the bank to send you the monthly statements may be difficult. I suggest having a lawyer write them a letter.
My sister quit claimed deed her house to me a few years prior to her death. The house had been refinanced and once she passed she left a balance of $140,000 unfortunately, the house is probably worth only $100,00. I already own a home and can only afford to pay my own. At this time I cannot find anyone to rent the home. Are there any other options I can take to alleviate this stress. Truly, I cannot afford to keep this property and I don't think anyone will buy it.
RESPONSE: It sounds like you may have to let it go into foreclosure.
My Grandmother has willed her home to me as the only beneficiary. In Indiana would I have to create a mortgage in my own name, or continue with the way her mortgage is set? If so, what is a reference source for the federal law you mention above?
RESPONSE: You are not required to refinance. 12 USC ยง 1701j-3(d).
My grandmother quit claimed her property to me before she died. The will said that I was going to inherit the house and belongings. My mother was handling her estate and the estate is now closed. I live in another state. My mother wants to move into the house, but the mortgage company keeps trying to get her financial information to see if she can afford to pay the mortgage. Is this legal? I thought that we could just keep paying the mortgage. Does her name need to be on the deed to keep them from calling in the note?
RESPONSE: No. The mortgage company cannot force her to refinance.
My mother left me her house in her will. I have lived here for the past 2 years taking care of her and she now has passed. The bank said I could complete a name change and be added to the account but the house will still be in her name r apply for a qualified loan assumption (what if I can't qualify?) I asked what happens with the equity and they did not know the answer to that. So what does happen? If my mother is deceased wouldn't that make me the only holder on the account?
RESPONSE: I recommend that you consult a probate attorney to see that any necessary proceeding is commenced to ensure that you have title to the property.
My mother passed in February of this year. Shortly before her death, she executed a Beneficiary Deed leaving the house to me. She still had a mortgage and an equity loan. I called a real estate attorney here in Arkansas and they said the bank CAN force me to refinance and she had not heard of the Garn-St.Germain Depository Institutions Act of 1982 that you quote here. I've been making the payments since her death but at this time would not qualify for a loan on my own. How do I find out if this law applies to my situation or if the attorney is correct and they CAN force me to refinance? Thanks for any help you can provide.
RESPONSE: The Garn-St. Germain Act is federal law, so it applies in all 50 states.
My husband's mother passed away in Feb 2009. Her husband updated his affairs and did an Declaration of Revocable Trust to have his home go to my husband (his step-son) upon his death. There was a Quit Claim Deed done and filed with the city (Illinois). The husband has been placed in an assisted living facility recently and the house is up for sale. They owe way more than what we can possible sell the house for. If he passes away and the house is not sold and ownership transfers to my husband, are we responsible for the mortgage? If we are able to sell the house (which will be for less than the mortgage) but owe $30,000 at closing -- do we have to pay this out of our personal money. We live in Arkansas with our own mortgage and don't want the house in Illinois and don't have the funds to cover this house too.
RESPONSE: Your husband has no personal responsibility for the mortgage. For more specific advice about how to handle this matter, he should consult with an estate attorney in Illinois.
Mother died and left house to friend in her will, subject to mortgage. Her estate does not have enough other assets to pay debts - does the house have to be sold to pay off the debts, with the balance left going to friend, or can friend simply keep paying mortgage and keep house?
RESPONSE: Yes, the house must be sold.
I think I understand from reading these questions that: If a house, with a mortgaged, is willed to a child, the child may continue to pay the mortgage without having to refi. However; if the child falls behind and the house eventually goes into foreclosure, will the lender come to the deceased estate for the balance of the home, or will they just take the home from the child to whom it was willed? This is in Missouri.
RESPONSE: Missouri law would control the treatment of any deficiency against the estate. However, bBy the time the child defaults, the estate will probably be closed, so lender will just foreclose on the house.
California: My father passed and grant deeded the title of his two homes to my brother and me. I currently live in one of the homes and there is a renter in the other. We are unable to afford the second home and wish to transfer the title to the renter. The home is upside down and the renter is unable to qualify to purchase the home on either normal or short-sale. Is it legal for us to grant deed the home to the renter and let him continue to make payments?
RESPONSE: You can give him the home, but the lender may then have the right to demand that the loan be paid in full, and then foreclose if it is not paid. I suggest that you consult with a California attorney.
North Carolina: My mom died in March and my sister and I inherited. We now have title to the property. My sister has agreed to quitclaim in order for me to be sole owner. It sounds like I can continue paying the mortgage without having to refinance. So, do I actually contact the mortgage company to have to modify the information on the loan or would the loan still remian in my mother's name? Also, if I wish to refinance as there is more than 50% equity in the home, do I do this through a regular mortgage broker once the original loan is in my name?
RESPONSE: You should contact the mortgage company so that they have your name and social security number. If you want to refinance, you can use any bank or broker.
My husband and I inherited a home from his Mom (her husband passed before she did and he is listed on the mortgage with her as well) who passed away 2 years ago, the house still has 91,000 left to pay and we have continued to pay the mortgage payment every month, we did get house insurance in our name (told by the lawyer we had to do this). The lawyer said the mortgage company was notified by the city when records was made that we inherited the home but the acutally mortgage remains in the name of my Father and Mother but the owner of the house which is us are listed at courthouse as our property. Can we claim taxes on this home every year and is their anyway our names can be put on the mortgage and their names be taken off without refinacing? I almost positive that their names will have to remain until house is paid off but can we claim the house on our federal taxes if so what do we need to do? I appreciate any help you have to offer!! Karen in state of VA
RESPONSE: There is no way to remove the parents' names from the mortgage other than refinancing. As for question about the deduction, you should consult with a CPA or tax attorney.
I inherited a home from my grandfather that has a reverse mortgage on it, does the above referenced law apply to this situation as well? The property is in Washington state, if that makes a difference.
RESPONSE: No - the terms of a reverse mortgage require that it be repaid in full after the death of the homeowner.
my ex passed away and left me his house which has a mortgage ,the house is in ga. i am also the executor ,do i have to refinance the mortgage or can it be transfered to me
RESPONSE: Since you were not married you will have to refinance if the bank requires it.
I have been on title to my parents home for a number of years. Have not been on their mortgage. /they passed and I have been paying the payments for almost two years. Am I correct to assume that in California - I should be ok and not have the mortgage holder call in the loan? I should be protected by the Garn-St. Germain?
RESPONSE: Yes.
My husbands father passed away last year and left us his house in NC. The deed has been transfered to my husband name and the mortgage is listed as 'the estate of...'. The estate has been closed out completely. Currently we have been covering the mortgage payments to the bank. My question is 'what would happen if we stopped making payments'?
RESPONSE: The bank will foreclose on the house.