Selling a Home After Spouse's Death

: Richard Montgomery on Dec 10, 2024

Dear Monty: I am a widow. Our home is mortgaged in my deceased husband's name only. Can I sell the home? I have tried to get the mortgage in my name; I pay the mortgage every month. But I have had no success. I am told they are working on it, but I believe there have been enough time to provide a response. Do I have any legal obligations as I cannot prove ownership?

Monty's Answer: First and foremost, your ability to sell the home depends on several critical factors that need to be determined:

No. 1: There is critical information that has not been provided in your question: the state the home is located in and if you have a certificate of marriage.

No. 2: Has your husband's estate gone through probate? If he had a will naming you as beneficiary, or if you're entitled to inherit under state intestacy laws (laws that govern when there's no will), you would need to go through probate to legally establish your ownership of the property.

Regarding the mortgage situation: Under federal law, specifically the Garn-St. Germain Act, you have certain protections as a surviving spouse. The lender cannot trigger the due-on-sale clause (which normally allows them to demand full payment when ownership changes) when property transfers to a relative upon death. You have the right to keep making payments and assume the mortgage.

The fact that you've been making payments is good, but the lack of response from the mortgage company about putting the loan in your name is concerning. Consider seeking assistance from a real estate attorney who can:

-- Review your current legal standing regarding property ownership

-- Help navigate the assumption process with the mortgage company

-- Advise on whether probate is necessary if it hasn't been completed

-- Guide you through the legal requirements for selling the property

-- Help determine if the Consumer Financial Protection Bureau can help to file a complaint about the mortgage servicer's lack of response. They are required by law to respond to qualified written requests within certain time frames.

As for legal obligations, you do have responsibilities even in this unclear situation. Continue making mortgage payments to protect your interests and credit. Keep detailed records of all payments and communications with the mortgage company. Before attempting to sell, you must establish clear legal ownership. Without this, you cannot legally transfer the property to a buyer. Any attempt to sell without proper legal authority could result in serious legal complications.

Some immediate actions you should consider:

-- Obtain a copy of your husband's death certificate if you haven't already

-- Locate the original deed to the property

-- Gather all mortgage documentation

-- Request a written status update from the mortgage company about the assumption process

-- Consider working with a probate attorney if the estate hasn't been settled

The good news is that you do have legal rights and protections; it's just a matter of properly asserting them. While the process might seem overwhelming, with proper legal guidance, you can resolve this situation and move forward with either keeping or selling the property according to your wishes.

Richard Montgomery is a syndicated columnist, published author, retired real estate executive, serial entrepreneur and the founder of DearMonty.com and PropBox, Inc. He provides consumers with options to real estate issues. Follow him on Twitter (X) @dearmonty or DearMonty.com.

----