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How do I transfer a deed to just my name after the death of my brother? We owned property with right of survivorship?

This legal question related to estate planning attorneys in Tennessee has been answered.

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Location: Tennessee  |  Law type: estate planning attorneys
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The property deed is written with right of survivorship. However, the mortgage is in his name only. In addition, the mortgage payments are in arrears but the bank will not let me make payments because I'm not on the loan. How do I go about getting the property put in just my name? Also how do I keep the bank from foreclosing on the property in the meantime?

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Legal Solution

The response provided below is specific to estate planning attorneys in the jurisdiction of Tennessee. If the response is inadequate, please submit a detailed inquiry.

Transferring Deed Solely to Your Name in Tennessee: Death of Joint Owner & Mortgage Complications

In Tennessee, when you and another person own a property with the right of survivorship, it means that upon the death of one owner, the property will automatically pass to the surviving owner. However, the complications arise when the mortgage is solely in the name of the deceased owner, and the lender restricts your ability to manage the mortgage arrears. Here’s a guide on what you can do:

Relevant Tennessee Statutes and Resources

  • Tennessee Code Title 66 - This contains the statutes governing property rights and conveyances in the state.
  • Tennessee Department of Financial Institutions - This department oversees banking regulations, including those regarding mortgages.
  • Official Tennessee Government Website - For general information on state regulations and resources.

Addressing the Property Deed and Mortgage

  1. Recording the Death: Begin by recording the death certificate at the local county recorder's office. This will provide official notice of the death and your subsequent sole ownership by right of survivorship.

  2. Contacting the Mortgage Lender: While the mortgage is in your brother's name, it's crucial to keep the bank informed. Even if they won’t allow payments, keeping them in the loop might prevent quick foreclosure actions.

  3. Assumption of Mortgage: Some mortgages have a 'due-on-sale' clause, which means the loan balance becomes due when the property transfers ownership. However, federal law provides exceptions for transfers upon death. You can apply to the bank to assume the mortgage, effectively putting the loan in your name.

  4. Refinancing: If the lender won't allow an assumption, you may consider refinancing the loan into your name. This could also potentially offer you better terms or interest rates.

  5. Seek Legal Counsel: It's recommended to find the right lawyer specializing in estate planning or real estate to guide you through this process, ensuring all legal procedures are correctly followed.

Average Costs for Legal Services in Tennessee

Service Average Cost
Property deed transfer $500 - $1,200
Mortgage assumption or refinancing $2,500 - $5,000
Estate planning consultation $200 - $500/hr
Property foreclosure defense $3,000 - $7,000

Note: These are just average prices and can vary based on the complexity of the case, the reputation of the attorney, and the region within Tennessee.

Seeking More Information?

It's essential to have a full understanding of your situation. If there are any details or aspects you haven't provided, it may affect the guidance offered.

Relevant Questions for Context

  • Have you consulted with any probate lawyers regarding this matter?
  • Were there any other debts or assets left by your brother that could affect this property?
  • Did your brother leave a will that might have stipulations about the property?

Frequently Asked Questions in Tennessee Related to Property and Estate Planning:

How long do I have to transfer the deed after the death of a co-owner?

The property automatically transfers to the surviving owner upon death. However, it's best to record the change as soon as possible for clarity in official records.

What happens if I can't pay the mortgage arrears?

If you can't address the arrears, the bank may initiate foreclosure proceedings. It's essential to communicate with them and explore options like loan modifications.

Can I sell the property even if the mortgage is in the deceased’s name?

Yes, you can sell the property, but the mortgage must be paid off with the sale proceeds, or the buyer must assume the loan.

Do I have to pay inheritance tax on the property in Tennessee?

As of my last update in 2021, Tennessee does not have an inheritance tax. However, it's always best to consult with a tax professional regarding current tax implications.

Can the bank force the sale of the property if the mortgage is in arrears?

Yes, if the mortgage remains unpaid, the lender can initiate foreclosure proceedings to recoup their money. It's vital to address this situation promptly.

Disclaimer

This content is for informational purposes only and does not establish an attorney-client relationship. It's always recommended to consult with a local attorney about your specific situation.

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