Montgomery, AL asked in Probate for Alabama

Q: If father can’t qualify for mortgage assumption w/ a company, but qualifies with another, is that a “sale” in probate

I am the executor for my mothers estate.

The home he was left to him in her Will, but it has a mortgage debt on it. Fathers name is not on deed or mortgage.

Father is trying to assume current mortgage of my mother - his deceased spouse, with the remaining balance left.

In the event he doesn’t qualify with current lender , could he go to another lender and get qualified to buy the home ? If he got approved through another lender, does the probate court consider that a sell by a 3rd party (i.e petition the court to sell)? Could I as the executor do a “private sell” or before it’s sold to him through another lender, do I have to notify the court? Would the court need to be notify that the house is going up for sale but we really only want to sell it to him. I assume that I would be the seller representing my mothers estate, selling to my father. At what point does the probate court need to get involved in this process?

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1 Lawyer Answer
Nina Whitehurst
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  • Probate Lawyer
  • Crossville, TN

A: If this is a house, your father does not have to assume the loan. He can just keep making the payments. If he does not keep making the payments the lender will foreclose. He does not have to assume the loan to keep making the payments. Under federal law the lender cannot call the loan due when a borrower dies and family inherits.

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