How does a deed and mortgage work?

My mom and her husband are both on a house deed in FL. They have been separated not legally for over 5 years as she wanted to move back to IL to be with family and he didn’t. So she has lived in IL for over 5 years while he stayed in the marital home in FL. They remained amicable. She found out today that her husband passed away and his kids are saying her name is not on the mortgage paperwork so she is thinking he might have refinanced without telling her. His kids are saying that she is not on the mortgage and has no legal right to the property. So they are still legally married and her name is on the deed still according to the county deed records. Is the house technically her property still and is she liable for the mortgage payments until

sold?

Asked on December 19, 2018 under Real Estate Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

The deed determines ownership; the mortgage determines who has to pay the loan. If she is on the deed still, she is still an owner; depending on how she and her husband had owned the home, she likely has a a one half or possibly even 100% ownership of the home (e.g. if it was owned as "joint tenants with right of survivorship," or JTROS, then when he died, it became hers solely). 
She is not required to pay the mortgage if she is not on it--a mortgage is a contract, and only the people who sign the contract are bound by it--BUT if no one pays it, the lender will presumably foreclose (they have that right). So if she and/or any other heirs want to keep the house (or keep it until they can sell), someone will have to pay.
She should retain a FL attorney to make sure she gets her share or or interest in the house, given the children's opposition.


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