Deltona, FL asked in Real Estate Law and Estate Planning for Florida

Q: Ex died leaving a house he received in divorce to his sister. Im still on the mortgage. Who pays and what happens to

mortgage? I can't have late pmts on my credit. She will probably want to sell. Should I try to buy her equity and continue mortgage?

4 Lawyer Answers
Theodore David Vicknair Sr.
Theodore David Vicknair Sr.
Answered
  • Estate Planning Lawyer
  • Mandeville, LA

A: I assume there is no cash in the estate.

Are you and his sister adversarial? If not, then talk to an attorney about working out an agreement that allows you to be recognized as a creditor of the estate, and pursuant to this agreement you would ontinue pay the mortgage, but you would get your payments reimbursed out of any sales proceeds from the sale in preference to any other payments. This could be its own mortgage. You would have a second mortgage and be reimbursed at closing like the first mortgage company.

If you are adversarial, you may have to obtain an order from the court pretty much doing the same thing, but you would have to go in for a hearing before the judge.

Those are my suggestions.

Jane Kim
Jane Kim
Answered
  • Naples, FL
  • Licensed in Florida

A: Mortgage is a contract between you and the bank.

It is unusual to be financially responsible for the property and have no equitable interest in it. But sounds like that's what you've got. Usually, during divorce, the husband receiving the property would also be required to refi the property solely in his name. You may need to enforce your divorce judgment against the estate if the sister-in-law refuses to pay you the balance of your mortgage.

Marc J. Soss
Marc J. Soss
PREMIUM
Answered
  • Estate Planning Lawyer
  • Sarasota, FL
  • Licensed in Florida

A: What did your divorce decree state with regard to the mortgage? Did he have to refinance it? You need to get yourself removed from the mortgage, and the sister needs to refinance the house. How is your name on the mortgage and not the title? I cant tell you what to do, but if she sells it will discharge you from the mortgage, so long as there is not a short fall in equity to debt.

Carol Larmond Grant
Carol Larmond Grant
Answered
  • Estate Planning Lawyer
  • Davie, FL
  • Licensed in Florida

A: When you say he left the home to his sister was this by Will or Trust? Was the home his homestead? If the home was given by Will then the property would need to go through probate. If the home was his homestead, and if he was not survived by a spouse or minor child then the gift might be valid. Who is living in the home?

Since you are concerned about your credit, the first thing I would do is contact your ex-sister-in-law if you are on good terms and find out if she is willing to pay the mortgage. If she is not willing then to protect your credit and avoid foreclosure you might want to pay the mortgage and keep accurate records so you file a claim against the estate. You need to pull out your divorce decree and review it with an attorney who handles divorce and probate, if possible. Did your ex-sister-in-law open a probate case?

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