Q: Brother died without will. Nearest living relative - a brother in CA. Condo under water. Debts-many. Condo bad.
Furniture/personal papers left. Old car not worth much. HOA owing 3 mos. Mtg-owed 3 mos.Car reg due Jan. If not reg, will tow away. What are liabilities on living brother? How will brother know when mortgagee takes over the condo? Condo HOA people asking brother what he is going to do. He has told them that he does not know what is going on. A person has asked brother to sell them the car as they are desperate and have no money. Brother said he does not know what is going on and therefore cannot sell car. What is left will not cover current mortgage - might cover HOA. Brother on death bed said there is no will. What does brother need to prepare for and is he liable for anything?
A: You do not need to open the estate if all the assets are security for mortgages or loans that exceed the value of the assets. If you do not open the estate, then at some point, there will be a foreclosure action that will either name the heirs (you) as a defendant by name or by category. If you are concerned about your liability in a foreclosure action, then I would recommend that you speak with a foreclosure attorney to determine if it would be worthwhile to open the estate solely so that you could enter into an agreement with the lender to sign a deed in lieu of foreclosure.
A:
Dear Los Gatos:
First, I am assuming that the Decedent died a resident of California and that the property is located within California. Probate and foreclosure laws are state specific. If the Decedent lived in a state other than California, or if the property is located in another state, I would re-post your question in the form for the correct state.
Family members of a Decedent are not personally liable for the decedent's debts. Unless, of course, the family member is a co-debtor. For example, if you co-sign a loan for your sister, you become equally responsible for the loan. Also, assuming the mortgage is a standard purchase mortgage, California's anti-deficiency statutes prevent a lender from recovering more than the amount they receive at a foreclosure auction.
Transferring the car presents a different problem. No one has the authority to sign for a deceased person unless 1) they are the court appointed representative, or 2) the value of the probate estate is less than $150,000. Since the $150,000 threshold is the value of the property without respect for any liens or encumbrances (that is, no discounts for the amount owing on the loan), the estate is most likely above the $150,000 threshold amount.
That being said, I recommend that the surviving brother consult with a qualified probate attorney, as issues involving debts and decedents can be complicated. If he does not know where to find an attorney, he can call his local county bar association. Most California county bar associations run an attorney referral program where you receive a consultation with an attorney for a small or no fee.
Best of luck, and sorry for your loss.
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