Q: My mom and I refinanced her house almost 2 years ago, she passed in Dec. Now my brother want to take it.
At the time the house was refinanced he had the option to be on the mortgage and he said he wanted no part of it. Our mom passed away on Dec 1,2020. As of Feb 20, he now want to take the house for himself and sell it. What options do I have? I am currently living there with my 2 oldest children. Does he have any legal rights to the house just because he is older?
If there was a will, then it goes to those persons named in the will.
Otherwise, it would go the children, equally (if there is no living spouse.)
Either way, nothing can be done to the house until someone goes to court and is appointed as the Executor (or Administrator, if there is no will.)
However, if there is a Transfer on Death Affidavit for the property recorded with the county recorder, then the house would go to the person named in the Affidavit.
A: Your brother’s age is irrelevant. Who signed the mortgage is irrelevant. If your mother had a Will, it dictates where her money and property goes. If she had no Will, the law decides where her money and property goes after enforceable debts are paid, but creditors must act to enforce the debts so if you are careful, it may be possible to avoid all debts except the mortgage. If you and your mother were on the deed (not mortgage) together and it says “joint with rights of survivorship” then your brother has no rights whatsoever to the property. The mortgage must be paid off unless the lender will allow you to assume the mortgage yourself. There are many issues here and you are going to need an expert probate lawyer to help you.
Aaron Epling agrees with this answer
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