Can I sell my inherited home and land if someone else’s name is on the mortgage?

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Can I sell my inherited home and land if someone else’s name is on the mortgage?

I inherited my home and property a few years back when my father passed away. There was no Will. There is an outstanding loan on the home signed by my father and his fiance. Her name is on the note, not the deed. My loan advisor said I could sell and she could not get any money from the sale of the home and land. The estate is not yet settled. can I legally sell? Will the fiance get anything?

Asked on May 13, 2011 under Real Estate Law, Tennessee


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

You need to consult with a real estate attorney before doing anything. There are several problems; for example:

1) Nothing can be done until the estate is fully settled.

2) The home can't be sold without paying off the mortgage. When you try to sell, the mortgage will come up during the title search; you cannot transfer clean title without paying off the mortgage, so it is *very* unlikely you will be able to actually sell the home.

3) If you did somehow sell the home, then if the mortgage is not paid--e.g. the fiance stops paying--the bank can foreclose on the home. That means that the buyer will lose the home and have a cause of action against *you* for the full sale price of the home.

4) The fiance might have a cause of action against you if you sell the asset which secures the loan without paying the loan off, leaving her holding the bag.

In short, if something sounds too good to be true, it probably is too good be true.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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