My mother passed in December 14, 2014 she put the deed under my name but the mortgage was not notified. I've been paying on time but I'm not sure if I have to be paying it since she passed.. and when I call and make the payment I give her information ...
1. In whose name was any tax benefit taken on the interest part of the mortgage payments taken while your mom was alive?
2. With the mortgage payments set up in agreement with her, can you claim such tax benefits now that she is due without the mortgage as well as the deed having your name on it?
Or on the other side of the coin, that an heir believes when they inherit a house, that it comes free and clear?
OR did mom die intestate?
It's good that you have paid, as would have gone to foreclosure by now. But if you are not heir, you need to do stuff to be reinburse for all the payments made on anything on the house.
When I bought my house, since I had real estate experience with one of the top large law firms in Michigan, I of course treated my purchase as I would a clien't. So I compared the legal description in the title work to that in the listing and found a discrepancy in the legal description of the property. The listing and purchase agreement indicated a property almost twice the size of that described in the title work.
I queried my realtor but could tell she didn't understand the issue, nor did she feel I was right in my assessment. It was her opinion that there was no discrepancy.
So I mathematically sketched the two different properties from the legal description. I was right - there were 2 different sized properties.
I finally had to threaten not to close until the issue was resolved; then my realtor got busy and contacted the seller's attorney. I don't even remember now why I chose her, but that was not a good choice.
I was right - the owners had taken title via 1 separate deeds, one for the latter part of a long narrow lot. The wife said she hadn't even thought to mention the second deed to their realtor when the property was listed.
Had I allowed the realtor to prevail, I would have ended up with the frontal part of a property, the former owners would still have owned the back part, but couldn't access it to even maintain it.
Realtors have their specialties with a little knowledge of ancillary areas, but they aren't qualified to opine on legal issues.
I think you need an attorney to help you with all of this!
Otherwise, if a parent who is still living deeds a house over to a grown child and the parent is totally off the deed, then the cost basis used for capital gains is the cost of the house when the parent had bought it. If a parent paid $5,000 for a house and 60 years later it is sells for $300,000 [location, location, location] the profit before deducting expenses is $295,000.
But if the house is named in a Will, and the parent passes, a new deed is made.... the cost basis used for capital gains is the day of passing. Home is worth $250,000 thus the cost basis will be $250,000 before deducting expenses [ie: realtor fees, etc].
Another thing to think about before deeding a house to a grown child while the parent is still alive.... a transfer of real estate could be considered a "gift" for gift tax purposes, and will require the filing of Federal Tax Form 709 to report the gift to the IRS and the payment of any gift tax generated by the transfer. Check first with an accountant for any current rulings on this.
If I remember correctly, Countrywide pulled the "don't send a payment" nonsense with me as well.
This could be a deliberate attempt to allow the mortgage payment to be late, so the lender can either:
(a) charge a late fee, and/or
(b) establish a precedent for late payment, as a another precedent to find you lacking as an acceptable assignee (there may be a provision in the mortgage allowing them to approve anyone who wishes to assume responsibilities under someone else's mortgage) or as the first step in allowing the payments to become delinquent, as a path to foreclosure.
Watch yourself - this is a tricky situation.
When Countrywide pulled that nonsense with me, I thought it all over and decided to send the payment anyway rather than give them grounds for adverse reaction later. I was glad I did after realizing what dastardly people they were.
Another issue: were you told verbally? If so, you can bet that there will be no documentation in the lender's files and the person who told you won't be identified. And someone later may very well deny you were ever advised not to send the payment yet.
I would send the payment ASAP. Or if you want advice from someone in the legal community, see if you can find a free legal clinic in your area. Check with the local county and state attorney bar associations - they'll know of free legal clinics.
If you were named executor, you have a lot of work to do, and it is not easy. You must involve an estate lawyer very quickly or be in trouble for dispersing property without probate and that is against the law.
Please tell us why you're concerned about losing the house for whatever reasons, including foreclosure. Lenders have investments in houses and don't just foreclose without good reason. It does cost them to foreclose, not only to hire counsel but in bidding at the eventual Sheriff's Sale, so it's really to their advantage to have you continue to pay the mortgage. Don't worry about their refusing your money - I doubt that would happen.
BTW, I would send the documents certified mail. When I sent them to Countrywide after my sister's death, I sent them certified but Countrywide lost them and I had to send them a second time. That was typical for Countrywide.
But if you're dealing with Bank of America, be prepared to be wrung through the ringer. They're notorious for being difficult to deal with.
It's been so long I don't remember the issues though.
I also remember the due-clause from ages ago. So you're not alone with this thinking.
It could in fact be that the law was enacted after I worked in commercial real estate.
It could also be that attorneys specifically didn't include that provision because the mortgagees may not have wanted to give an heirs an opportunity to assume a loan at the same rate.
And perhaps more importantly, an heir who assumed a mortgage wouldn't have gone through the same financial scrutiny to which the original mortgagor was subject. The new heir might not be someone to whom a mortgagee may otherwise grant a mortgage.
It's an interesting subject to explore. The statutes used to provide background on amendments, so that would help clarify when this provision was enacted. But it would involve more than a little research, especially since from what I've seen, on line legal research is somewhat different in that it appears the statutes are updated as amendments are made, whereas before that practice we had to research a statute then check the periodic inserts and updates for any changes.