Legal Question in Real Estate Law in California

Re: Does a widow need to qualify for the mortgage?

There are two ways of taking title in this state that is subject to an exisiting deed of trust. A party either purchases property "subject to" or they take with an "assumption." An assumption does not occur automatically, or by operation of any law, or by the death of a spouse. An assumption occurs when the lender consents to the person taking over the payments. It either occurs at the inception of the mortgage, when the person signs the note, or it occurs later during a sale. The question here is whether or not the wife signed the promissory note. If so, she is personally liable on the note, and the property is subject to foreclosure for failure to pay. If she did not, she is simply "subject to" and the lender can foreclose if the payments are not made.

Very truly yours,