Rancho Cucamonga, CA asked in Foreclosure, Civil Litigation, Collections and Probate for California

Q: My mom died 3+ years ago w no will or trust. There's a mortgage but husband hasent paid.

Husband hasn't paid the mortgage, and signed an interspousal trans deed. Still haven't started probate but now property is going to auction by the bank. Can my sister and I take over payments? We don't want to lose it

2 Lawyer Answers
James L. Arrasmith
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  • Collections Lawyer
  • Sacramento, CA
  • Licensed in California

A: I'm sorry to hear about your situation. Under California law, if your mother passed away without a will or trust, her estate, including the property, would need to go through the probate process. Given that your mother's husband signed an interspousal transfer deed, it's likely that the property was held in joint tenancy with the right of survivorship, meaning that the property would automatically pass to the surviving spouse upon your mother's death.

However, since the mortgage payments haven't been made and the property is now facing foreclosure, you and your sister may have a few options:

1. Initiate probate: Begin the probate process as soon as possible to establish the legal ownership of the property. This will allow you to communicate with the lender and potentially work out a plan to catch up on missed payments.

2. Contact the lender: Reach out to the lender directly and explain your situation. They may be willing to work with you on a loan modification, repayment plan, or forbearance to help you catch up on the missed payments and avoid foreclosure.

3. Assume the mortgage: If you and your sister qualify, you might be able to assume the existing mortgage and start making payments. This would require the lender's approval and is subject to their specific policies and procedures.

4. Consider a short sale or deed in lieu of foreclosure: If you're unable to catch up on payments or assume the mortgage, you may need to consider a short sale (selling the property for less than the outstanding mortgage balance) or a deed in lieu of foreclosure (voluntarily transferring the property to the lender) to avoid a formal foreclosure.

It's crucial to act quickly and seek legal advice from a probate attorney familiar with California law. They can guide you through the probate process, help you understand your rights, and advise you on the best course of action to protect your interests and potentially save the property from foreclosure.

Delaram Keshvarian
Delaram Keshvarian
  • Foreclosure Defense Lawyer
  • Orange, CA
  • Licensed in California

A: Thank you for your question!

The facts are very unclear to give you an answer:

Was the husband's (H) inter-spousal transfer before death or after the death of your mother?

Did the H's deed the property from your mother's name to himself or from himself to your mother's name?

Since I do not have facts, I assume H transferred the deed to your mother's name. In that case, yes, you can pay the mortgage as heirs of your mother's estate until the probate is done.

This is merely a discussion of general laws and not legal advice. For legal advice, more specific facts and investigations are needed. I recommend you consult with an attorney in more detail.

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