Q: I am in the probate process currently for my father's estate in Baltimore county. The house my parents resided in
Only had his name on it. His name solely on the mortgage, but home owners insurance both names. He had credit card debt for less than 5 grand. My mom still lives in the home and we are trying to secure it for her. If we pay the credit card debt will this help or hinder the process. We just want the home, she continues to pay on the mortgage every month.
"I have done the first part and put the house as the only asset. We have some life insurance that we can pay the debt with. While not ideal we have no other solution since we need to keep the house. My mom has been put as the personal representative and my brother and I don't want anything besides the house in her name. Her name was originally on the deed, but taken off in 2001 so my dad could get a better deal with the mortgage company. Really stupid reason to take your wife off of the deed. Sadly this is in regular probate and not small made that mistake in the beginning." Thank you for the help!
A: If the souse was purchased during the marriage, you can file a corrective deed by presenting the marriage certificate and the death certificate of the title holder and preparing the deed. That's sometimes helpful in keeping the title clean. If she was not married at the time of purchase, the credit cards, homeowner insurance, and residency are irrelevant. You need to transfer the home in probate in accordance with the will, if any, or by renunciations of the true heirs. There are too many details and twists to contain in a quick posting. A lawyer could guide you through this fairly cheaply.
A: I respectfully disagree with the other attorney's suggestion to present the marriage certificate and do a "corrective deed" -- if your father died with the house titled in his name, it must go through probate. The fact that he was married at the time he purchased doesn't change that and Maryland law allows married people to own property separately.
Once the time period for creditor claims has passed (generally 6 mos), the Personal Representative usually can deed out the property after making sure any valid claims are paid. In a regular estate the Personal Representative first notifies the court by filing accounting showing what is in the estate, what bills have been paid and who is inheriting before they can deed property over to the surviving widow or other heirs. An estate lawyer can help fill out the necessary paperwork if you need assistance.
Thankfully there is a federal law that allows a surviving spouse who inherits a house to assume the mortgage. So your mom should have no problem assuming the loan. Deeding the property to the heir usually gets difficult only when there are claims that have to be paid and no money to pay them in the estate except by selling the house or refinancing.
You may wish to talk with an experienced estate lawyer to get help with the deed, even if you intend to handle most of the estate yourself. While not legal advice I hope this helps!
Mark Oakley agrees with this answer
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A: Adding to Ms. Laumann's answer, you do not state whether your father had a will or not. In the typical will for a married couple, each spouse leaves everything to the other spouse, unless the other spouse is deceased, an then their children receive everything. So, first thing first, look at the will. If there is no will, then intestate succession directs that the surviving spouse receive 50% of the estate and the adult children (I assume you are adults) the other 50%. In either scenario, if all heirs agree to a different distribution formula --e.g., where mom gets 100% of the hose or of everything-- then that can be accomplished by written agreement or sometimes by disclaimers of interest (but beware of doing simple disclaimers as that may result in the disclaimed interest being distributed to the children of the heir disclaiming the inheritance--not what you want to have happen). Therefore, in the absence of a will that distributes everything to your mother, you should retain an estate lawyer to properly administer the estate to accomplish what you want. Heirs who inherit real property take the property subject to any mortgage, and while they do not personally owe the debt, the property remains encumbered by it and is subject to foreclosure if the mortgage is not paid; however, so long as the new owner(s) pay the mortgage, the mortgage company cannot accelerate the loan balance and must accept the payments. The Personal Representative of the estate will execute a deed transferring the property from the estate to your mother, once you and your brother (and any other siblings) agree in writing to the distribution and waive your interest in the estate property. An alternative would be for the deed to be issued in all three of your names if you are all heirs under the law, which would avoid the property from having to go through probate when your mother passes, resulting in the home being owned outright by you and your brother. This might also be a good time to review your mother's estate documents (will, healthcare power of attorney, general financial power of attorney, advance directive, etc.). Then you will not have these after-the-fact headaches to contend with when the inevitable happens.
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