Husband died w/o a will

UPDATED: Sep 30, 2022

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Husband died w/o a will

This is for my sister. Her husband died without a will. She is not on the deed for the property they lived in together. She has done nothing in regards to notification of his death except to take him off the checking account. She has been paying mortgage and escrow since the time of his death. Legally where does she stand? The mortgage is upside down and she needs to move from the property?

Asked on July 19, 2017 under Estate Planning, Ohio


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Is she on the mortgage? If she is on the mortgage, she is responsible for it and has to pay it even if not on the deed. A mortgage is a contract; if you sign the mortgage, you contractually obligate yourself to pay it. If she fails to pay it, in addition to or instead of foreclosing on the house, the lender could sue her for unpaid balance: the full balance, if they choose to not foreclose; or if they do foreclose, any part of the balance not paid by the proceeds of foreclosing on and auctioning off the house. She may be able to negotiate a "short sale" or a surrender of the house to the bank to take care of the debt, but that is voluntary on the bank's part; they could choose to simply hold her liable under the mortgage.
If she is not on the mortgage, however, then she is NOT liable for the mortgage: she can't be sued over it, it won't go against her credit, etc. Again, a mortgage is a contract; only those who voluntarily sign or bind themselves to the contract are obligated under it. Since she's not on the deed, either, she should be able to walk away from the property and the debt.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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