Harrisonburg, VA asked in Estate Planning, Probate and Real Estate Law for Virginia

Q: My father passed away 3 months ago and was a co-signer on a home mortgage with his step-father.

Can the house just be left in the step-father's name, and not be considered an asset of my father's?

1 Lawyer Answer
James H. Wilson Jr.
James H. Wilson Jr.
  • Estate Planning Lawyer
  • Glen Allen, VA
  • Licensed in Virginia

A: Most real estate financing in Virginia is secured by a deed of trust rather than a "mortgage", although that term is used in a general sense for any loan secured by real estate. Title is determined by the deed and the chain of title, not who may or may not be liable on the note secured by the deed of trust. There are instances in which a co-owner signs the deed of trust to secure the note, but is not liable as a borrower or guarantor on the note itself. Conversely, someone may be liable on a note, but not have a title interest in the real estate upon which a deed of trust is granted.

Someone must examine the title to determine your father's interest. If the title was held with survivorship, it would have passed to the survivor upon his death to the co-owner. The debt is not extinguished by his death, and would still be a potential liability of the estate. It is important to discuss whether and how to probate a loved one's Virginia estate with an experienced Virginia probate lawyer.

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