Washington, DC asked in Real Estate Law and Tax Law for Maryland

Q: Do you all prepare legal deeds? I want to assume the loan to my late father's home and need a drafted deed

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2 Lawyer Answers

A: Yes. But you describe two very different things. Are you purchasing the home, and the price is assumption of the mortgage? And what about your father's equity in the house? Is he gifting that to you?

A: The only likely scenario where you can continue paying the existing mortgage on your deceased father's home without replacing (refinancing) it, is if you are your father's heir and are receiving the house as part of his estate distribution. In that scenario, the law allows an heir in the direct line of succession to the deceased owner--their child, for instance, so you qualify--to take title to the home as part of the estate distribution of assets, and the mortgage continues the same as it always has, so long as the new owner who inherited the home pays the mortgage payments. The estate Personal Representative signs a deed on behalf of your father's estate tranfering title to you. It gets recorded, and then you provide that information to the mortgage company, which will direct all mortgage statements to you as the new owner. You do not personally "assume" the mortgage. Assuming a mortgage makes you personally liable on the loan. You are not doing that when you inherit the property. You become the deeded owner of the property, which is subject to the existing lien of the mortgage. The mortgage lender can still foreclose against the property if you fail to pay the loan, but they cannot sue you personally for the balance due. This is better than assuming the mortgage. You get to own the property, and keep paying the mortgage, but have no personal liability. You can, if you choose, refinance the mortgage by getting a new mortgage that pays the old one off, perhaps in order to cash out more money from the equity in the house, and keep the extra for renovations or other purposes, but of course your new mortgage will be larger, and you would then be personally liable on the loan.

If you are not the sole heir to your father's house, then you will have to work out an agreement with the other heirs entitled to a share of the house.

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