Hey guys,
went out and almost got a deal this weekend. Quick question. Wife is ready to complete to deal however her husband is deceased, (Died without o will or any kind of trust) he is on note and deed she is on deed only. Moving out of state to be with sister. Any help here would be great.
She owes $165K, mthly pymt $1250 want to lease purchase with an upfront amount of $15k down and the bal of $40 paid at the time of the sale. leased time frame is 3 years. Market value is $260K. Rent comps are $1850. This is a great deal, But I am on pause until I know what to do.
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries.
Talk to a Probate Attorney and find out how to transfer title to the descendants wife. This is the safe way to do this deal, otherwise there maybe additional claims by the relatives of the person who passed away, which would cloud the title for future transfers.
b Exemption of specified transfers or dispositions
[/b]
With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon—
(5) a transfer to a relative resulting from the death of a borrower;
b a transfer where the spouse or children of the borrower become an owner of the property;[/b]
Check the deed to see how the property is titled. If title is “Joint Tenants” or “Tenants In Entirety” (IIRC) the property automagicaly passes to the surviving spouse without going through probate. And better than that, any liens against the property that are in the decedents name ONLY are no longer valid. (the debts may still be valid against the balance of the estate, but the lien can no longer be attached to the property.)
This is my understanding from my experience in NJ, not legal advise. Specific legal details may vary from place to place.
Typically a will controls financial affairs after a person’s death. A will distributes assets, not debts. But, before any money can be distributed to heirs, all the debts must be paid by the decendent’s estate. If necessary the estate sells enough assets to pay any debts that remain. Only after the debts are paid will the remaining assets be distributed among the beneficiaries of the will.
In the absence of a will, the decedent’s estate usually needs to go through probate. If you want to pursue this property, get a probate attorney to help you work through this one.
jmd, what if the deed is between mother and daughter, and it reads “as joint tenants with full rights to survivor and not as tenants in common” will this go through probate? Thanks, Herbster
My understanding is that if a property is titled as joint tenants with right of survivorship, upon death of one of the joint tenants, the share of the decedent automatically passes to the surviving tenants in proportion to their relative share of ownership (in the case of more than 2 original joint tenants) without going through probate. With only 2 original joint tenants, the remaining tenant becomes the full owner without passing through probate, As I stated above, IANAL, but I have purchased from widows who were joint tenants WROS or tenants in the entirety survivors and the title company has no problem giving me title insurance. (I won’t buy without title insurance) All they wanted was the husband’s death certificate. All the liens against the property in the husband’s name ONLY were disregarded with respect to sale of the property. (Even their lawyer (dumb ass) was surprised; he had advised them the liens would have to be paid off at the settlement table)
Talk to the title company you are using for title insurance and/or a “good” RE lawyer for definitive answers.