If my husband is deceased anf the mortgage is only in his name, will probate make me pay the home loan?

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If my husband is deceased anf the mortgage is only in his name, will probate make me pay the home loan?

I’m scared to death. I’m un employed so I can’t afford to stay in this house, but I’m scared to go to probate for fear they will stick me with the home loan. The loan is only in his name.

Asked on June 26, 2012 under Estate Planning, South Carolina

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss and the situation.  Who holds the title to the property?  Both of you with rights of survivorship?  Then the house pased to you automatically upon his death.  Now, the bank can not call in the loan if you wish to continue to pay it off (it is one of those exceptions under the law) but you seem to want to be rid of the asset. IS the home worth enough to pay off the mortgage on a sale? If it is not then there will be a deficiency and that will go against his estate. So what you need to do is to file a probate petition and become appointed as the personal representative in order to settle the estate.  If you walk away they will serve you with forclosure papers becuase you are on the title and depending on what else is in his estate (not that which passed to you on his death) the lendler could come after those assets if a deficiency occurs.  It may not be that scary though.  As the PR you can negotiatie a deed in lieu of foreclosure or some other deal in the best interest of the estate.  Good luck. 


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