Legal Question in Wills and Trusts in Georgia

i live in the state of georgia and am the executor of my deceased mother's will.

she owned two seperate pieces of property with homes on both. the first home has a home equity loan of $139,000.00 and the second home is free and clear w/o anything owing on it.

the bank who has the home equity loan has issued a lien against the estate and had it recorded.

my question is can the lending instution enforce the lien and foreclose on the second piece of property before i can sell either home. i realizse i must settle this loan and am trying to sell both pieces of property and do not want either foreclosed upon .

i am keeping payments made on the loan and will continue to do so while trying to sell both pieces of property.

thank you


Asked on 7/05/12, 6:40 pm

2 Answers from Attorneys

Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

Let me stress how important it is that you have a lawyer represent you in probate. The fact that you are posting here tells me you don't and that can be an expensive mistake.

Assuming you are making the payments, no, they can't foreclose.

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Answered on 7/05/12, 6:45 pm

The second property is owned free and clear. That cannot be foreclosed upon unless it was somehow used as collateral and made subject to the mortgage lien on the first parcel. The problem is the first mortgage. Someone ordinarily has to keep paying for that unless the lender is willing to work with you a bit. Since you indicate you are paying, I don't see a problem. How would the lender be able to foreclose if the mortgage debt is being paid?

When you say that the lender issued a lien against the estate, you mean they filed a claim with the estate such that the claim must be paid? Or do you mean that the mortgage on the one property is secured by a deed of trust on only that parcel? Or do you really mean that they have filed a notice of lien in the real estate records - much like a lis pendens - to alert any buyers that they have a superior interest?

If the latter, then the lien is just there to alert buyers. Usually the buyer's attorney will be required to satisfy the lien out of any sale proceeds in order to convey free and clear title to the buyer subject to any new mortgages/deeds of trust.

I concur with Attorney Ashman - you should get a local probate attorney. If you can't afford one, at least pay for a consult with one as needed to make sure that you handle things properly.

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Answered on 7/05/12, 9:17 pm


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