Can I sell my inherited home and land if someone else’s name is on the mortgage?

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Can I sell my inherited home and land if someone else’s name is on the mortgage?

I inherited my home and property a few years back when my father passed away. There was no Will. There is an outstanding loan on the home signed by my father and his fiance. Her name is on the note, not the deed. My loan advisor said I could sell and she could not get any money from the sale of the home and land. The estate is not yet settled. can I legally sell? Will the fiance get anything?

Asked on May 13, 2011 under Real Estate Law, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You need to consult with a real estate attorney before doing anything. There are several problems; for example:

1) Nothing can be done until the estate is fully settled.

2) The home can't be sold without paying off the mortgage. When you try to sell, the mortgage will come up during the title search; you cannot transfer clean title without paying off the mortgage, so it is *very* unlikely you will be able to actually sell the home.

3) If you did somehow sell the home, then if the mortgage is not paid--e.g. the fiance stops paying--the bank can foreclose on the home. That means that the buyer will lose the home and have a cause of action against *you* for the full sale price of the home.

4) The fiance might have a cause of action against you if you sell the asset which secures the loan without paying the loan off, leaving her holding the bag.

In short, if something sounds too good to be true, it probably is too good be true.


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