Q: we both are on the deed but only my critically ill husband is on the mtg loan.
At his death, with me on the deed, Will I automatically be the owner of the home and the loan given to me as well? We have been making consistent payments and I have while he has been ill. He could die at any time.
A: If you and your husband are both on the deed and own the property as tenants by the entireties, which, unless otherwise stated, is the way that you would own the property if you acquired it while you were married, the property would automatically pass to you upon his death. If that is the way you own the home, you and your husband must both be on the Mortgage, since, for a Mortgage to be valid, all owners of the property must sign it. It is possible, although it would be surprising, that only your husband signed the Note, which accompanied the Mortgage. I am assuming that the Note is what you refer to as the "mortgage loan," since the Note is the monetary obligation for what was the loan. If your husband, in fact, is the only one who signed the Note, only he and, after his passing, his estate, is actually liable for the loan evidenced by the Note. However, although you have no liability for the Note, if you do not continue to pay it, the Mortgage holder will foreclose and take your house, which I assume you would not want to happen. If you continue to pay the Note, I expect that the bank will gratefully accept your payments and leave well enough alone, irrespective of whether or not you are liable for its repayment.
You should discuss all this with a lawyer since there may be things that you need to do if it will be necessary to open an estate for your husband when he dies. Since the Note will be a debt of the estate, nothing that is a part of the estate (the house is not a part of the estate if it is owned as tenants by the entireties) could be distributed unless the Note is addressed in some fashion.
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