Legal Question in Wills and Trusts in New York

Re: Survivorship Mortgage

I think yo will have to separate the title to the property and the mortgage. Absent something in writing to the contrary, the estae has an interest in the mortgage.

Daniel Clement

Re: Survivorship Mortgage

Split answer- Even if the mortgage followed the survivorship designation in the Deed, 1/2 would still be included as part of the decedent's estate if they were not married for inheritance-estate tax purposes, as the value is an asset of the estate.

Unless there was some other designation in the Mortgage (e.g., as tenants in common), the Mortgage should follow the Deed registration as to the entitlement to the proceeds.

It could be argued that while a portion of the value is an estate asset of the decedent for inheritance tax purposes, the Mortgage itself is inherited by the joint tenant of the property as would have been the underlying property had it not been sold (with 1/2 of the property value still being in the decedent's estate for inheritance tax purposes).

I suggest a suit for instructions in which you would ask the Court to determine the ownership of the mortgage - you arguing that it should follow the original Deed registration.

You also may have a malpractice claim against the attorney that drew the Mortgage for failure to properly register the ownsership.

Wally