Legal Question in Real Estate Law in California

My mom was the primary signer on my home. I was the cosigner. My mom quit claimed her 50% interest to me before she died. I am now 100% owner. Will the bank honor the mortgage in my name now sin e she has passed. They have suspended my equity line and it is in probate?


Asked on 8/05/11, 7:04 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Quitclaiming to you was a big mistake. She should have let you inherit the property. Heirs get a generous tax break on capital gains that inter vivos donees don't.

Also, changing ownership without paying off the loan probably violated its due-on-sale clause, The bank probably has the right to call the loan as due and payable in full. Whether or not it will is another matter, but this probably explains why they suspended the HELOC.

I wonder about the probate. If you acquired a 100% interest before your mother's death, that would seem to take the house out of probate.

I think the bank is more likely to overlook the due on sale provision if you have a stellar record of on-time payments, but you might want to be looking at your possibilities for refinancing if you have to, or if you can get a better deal.

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Answered on 8/06/11, 9:58 am
Terry A. Nelson Nelson & Lawless

As long as you timely make all the payments, the lender will likely not try to accelerate the loan. Now that they know of the status, go negotiate a reasonable solution with them.

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Answered on 8/06/11, 12:52 pm


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