Husband died w/o a will

This is for my sister. Her husband died without a will. She is not on the deed for the property they lived in together. She has done nothing in regards to notification of his death except to take him off the checking account. She has been paying mortgage and escrow since the time of his death. Legally where does she stand? The mortgage is upside down and she needs to move from the property?

Asked on July 19, 2017 under Estate Planning, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Is she on the mortgage? If she is on the mortgage, she is responsible for it and has to pay it even if not on the deed. A mortgage is a contract; if you sign the mortgage, you contractually obligate yourself to pay it. If she fails to pay it, in addition to or instead of foreclosing on the house, the lender could sue her for unpaid balance: the full balance, if they choose to not foreclose; or if they do foreclose, any part of the balance not paid by the proceeds of foreclosing on and auctioning off the house. She may be able to negotiate a "short sale" or a surrender of the house to the bank to take care of the debt, but that is voluntary on the bank's part; they could choose to simply hold her liable under the mortgage.
If she is not on the mortgage, however, then she is NOT liable for the mortgage: she can't be sued over it, it won't go against her credit, etc. Again, a mortgage is a contract; only those who voluntarily sign or bind themselves to the contract are obligated under it. Since she's not on the deed, either, she should be able to walk away from the property and the debt.


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