Can a bank foreclose and sell a home without giving the executor and beneficiary notice?

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Can a bank foreclose and sell a home without giving the executor and beneficiary notice?

My late husband had cancer and he had already done his Will 2 years prior. In it he names me executor and beneficiary, no one else. After he died I contacted the bank that holds the mortgage (a VA guaranteed loan). I sent them a copy of the Will, death certificate, and marriage license. I told them that he left no life insurance so would probate the Will as soon as I got the funds (it costs $300 to probate). The bank assured me that they would work with me on it, however it foreclosed on our home without sending notice of the foreclosure sale date, nothing. I found out a month later that it had been done. An attorney hired by the VA gave me 3 days to vacate the premises.

Asked on August 24, 2019 under Estate Planning, Arkansas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Whether you had probated the will yet (and thus whether or not you were in fact the executor yet, since you are not actually the executor until the court ratifies the appointment), the bank is obligated to send notice to any potentially interested parties, so they have a chance to redeem the property and/or contest the foreclosure. That should have required at a minimum a notice sent to the "The Estate of" your husband, so that any potential heirs, beneficiaries, etc. (i.e. you) would have notice of the pending foreclosure. If notice was sent to the Estate (which would have gone to your address), the foreclosure is most likely legal and proper--they would not have needed to send notice specifically to you as executor if you had not started the probate process and been confirmed as executor yet. Notice to the Estate would have been enough.
But if there was no notice to the estate, then the foreclosure was most likley improper and you can likely get it vacated or voided (undone) by filing a legal action in the foreclosure part or division of your state court.
Of course, even if you can undo this foreclosure, that will only force them to start over, sending out the proper notices. Ultimately, if you can't or choose not to pay the arrears on the loan, they will be able to foreclose--you can't keep the house without paying the lender. So if you're not going to be able to pay the loan, it's not worth contesting the foreclosure. 


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