New Berlin, WI asked in Estate Planning for Wisconsin

Q: My dad is going into hospice and passing soon. The house is in his name but has a loan out on the house.

He has no will. If he passes does the house transfer to me and I take over payments or does the bank get it. I’ve been living there for years

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2 Lawyer Answers
Nina Whitehurst
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  • Estate Planning Lawyer
  • Crossville, TN

A: There is information from your statement of facts that make your question impossible to answer. When your dad dies, will he have a surviving spouse? Did your dad have any other children beside you?

Just FYI, the fact that you have been living in the house for years is of no consequence.

Also know that if the house passes to you upon your dad's death, the lender cannot call the loan due on that basis, and the lender cannot force you to assume the loan, but if the payments are not made when due, then the lender can foreclose. When you dad passes, you should inform the lender and let the lender know who inherited the house, and provide documentation of such. The lender will then be obligated by law to provide monthly statements and other information directly to the new owner(s).

Thomas B. Burton
Thomas B. Burton
  • Estate Planning Lawyer
  • Eau Claire, WI
  • Licensed in Wisconsin

A: Hello I am sorry to hear about your father. If he has no Will or Trust, then the house and any of his other assets subject to probate would pass according to the laws of intestacy. If you are the only living child, you may be an heir, but if there are other children, or a surviving spouse, then they may take precedence. If your father is able I would suggest he get in touch with an estate planning attorney while he is alive who can help him put together a plan for his estate. There may be ways to pass the house and other assets outside of probate to you or the other heirs if this is his intent. If you are living in the house you do not automatically take title to the home. In fact, if your father dies without a Will or a Trust, the home would likely be part of his probate estate and the Estate would own the home after his death. The mortgage on the home will survive his death, meaning whoever inherits the home would take title subject to the mortgage. If your father wants the house to go to you he should definitely seek a consultation with an estate planning attorney in your area to get this accomplished through his estate plan while he is still alive.

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