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Responsibility Of Mortgage After Death?

Having power of attorney over my mom, I paid all the bills. What happens to the mortgage after her death? Can I assume this even if my name is not on the deed? I am getting married... can I put my new wife's name on the deed only?




Professional Answers

Answered by: Joseph McHugh, Elder Law Attorney

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The answer to this requires a bit more information, such as is the house titled in a Trust, and also I would want to read the actual loan papers. But, I can tell you that generally, the Mortgage company did not give you the loan, and has no obligation to you to let you assume the loan. They won't care that you can prove that you have been making the payments.

Having said this, as long as interests rates remain the same or lower than your mother's loan, there may not be an incentive to make you refinance that loan in your name. However, if loan rates are greater, then there is no incentive on their part to allow you to assume a loan that they can get at a higher rate.

I am not sure how the property is titled. If it is in a Trust, and you are the beneficiary and successor trustee, then you just have to get it put in your name. If it is in your Mom's individual name, you will have to open a Probate.

As for putting your wife's name on it, if you own it, you can add anyone you want on it. But, at the moment, it would be considered to be your separate property. I am wishing you a long and happy marriage, but in the case of divorce, you may want to keep it as your separate property until you get a few years into the marriage.


Answer from: Janet L., Elder Law Attorney

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After he death either a probate or trust administration procedure would be required to transfer titlte if you are the heir or beneficiary of her estate. I would hope your mother created a living trust. After title is cleared the real property will be in your name, then you can add your wife to the deed. Inherited property is your separate property. If you want to keep it separate then you should consult with a lawyer, otherwise you may be making a gift to your spouse of 1/2 of the property.

In regards to the mortgage, the mortgage holder may allow you to assume their mortgage. Many clients just continue to make the mortgage payments without assuming the

mortgage or refinance and pay off the mortgage. The lender cannot foreclose on the property if the payments are made.


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