Miami, FL asked in Estate Planning, Probate, Foreclosure and Real Estate Law for Florida

Q: I guess my question is regarding probate and inheritance. 10 years ago my dad in the intent of helping my brother to

Buy a house. Lended the money as a form of a mortgage. My dad was the mortgagee and my brother the mortgagor. The mortgage was recorded and it was prepared by an attorney. Unfortunately my brother never made a single payment to my dad. My dad passed away last year. We have started the probate process. His only "asset" in Florida was the mortgagee. But now my brother says he has a affidavit that was signed by my dad on 2018 stating that my brother payed off that mortgage and it releases the title to him. This was never recorded and me and my other brother find it suspicious. My question is, is this document sufficient to cancel the mortgage?

Also he is going through a divorce and wants to tell his wife the we (me and my other brother) will sue them for non payment of the mortgage as a means to convince her to settle economically the divorce but then use the affidavit to keep the house from us.

Im am confuses if is this is possible.

1 Lawyer Answer
Terrence H Thorgaard
Terrence H Thorgaard
  • Estate Planning Lawyer
  • Freeeport, FL
  • Licensed in Florida

A: First, there is a 5-year statute of limitations which may be a problem. And the affidavit, if genuine, may also bar recovery by your father's estate.

You indicate that you "have started the probate process". Do you mean you have filed a probate case? Because generally where there are other interested parties the estate must be represented by an attorney; has your attorney told you what I wrote above?

Your brother's wife does not appear to be obligated, assuming she didn't sign the mortgage note. Misleading her in the way you suggest would be fraudulent; do not get involved in this scheme of his.

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