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ijjaff · Jun 28, 2010, 06:54 AM

I want to give the property over to my step father/her husband ? What do I need to do to make this happen. The property has a mortgage. Fairfax county issued me an affidavid for a small estate due to the size of the estate and that I entered the will into probate after 60days.

All I want is to hand over the property to my step father who will continue to pay the mortgage.

Also note I am UK citizen so I don't have a SS number.

JudyKayTee · Jun 28, 2010, 06:56 AM

First your setpfather has to get permission to take over the mortgage - from the bank/mortgage company. If he cannot he needs to get new financing.

Then you pay off the mortgage and deed the property over to him.

AK lawyer · Jun 28, 2010, 07:24 AM

Originally Posted by ijjaff

I want to give the property over to my step father/her husband ? what do I need to do to make this happen. The property has a mortgage. Fairfax county issued me an affidavid for a small estate due to the size of the estate and that I entered the will into probate after 60days.

All I want is to hand over the property to my step father who will continue to pay the mortgage.

Also note I am UK citizen so I dont have a SS number.

So you filed the affidavit?

Generally, if your step-father continues making the mortgage payments, there won't be a problem. But someone needs to determine what needs to be done to transfer the title to his name, under the small estate procedure.

JudyKayTee · Jun 28, 2010, 07:41 AM

Originally Posted by AK lawyer

So you filed the affidavit?

Generally, if your step-father continues making the mortgage payments, there won't be a problem. But someone needs to determine what needs to be done to transfer the title to his name, under the small estate procedure.

I don't know if it's the same all over but in NY you cannot simply assume the payments - I've seen mortgages called in on death. OP would have to ask. Once a new Deed is filed the bank will be notified because it holds a lien.

AK lawyer · Jun 28, 2010, 08:00 AM

Originally Posted by JudyKayTee

I don't know if it's the same all over but in NY you cannot simply assume the payments - I've seen mortgages called in on death. OP would have to ask. Once a new Deed is filed the bank will be notified because it holds a lien.

Perhaps. In my experience, when a document is recorded no one is notified unless a title report is ordered by someone. But the bank may find out eventually, somehow.

I wouldn't think the bank would be crazy about foreclosing on yet another property in the current economic situation.

Here is the affidavit form. I don't think it is adequate to transfer real property. The statute is for debtors of the estate to pay off their debts. It doesn't seem to contemplate real property transfers.

§ 64.1-132.3. Effect of affidavit.

The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to the affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered, or its payment, delivery, transfer, or issuance compelled upon proof of rightful claim in a proceeding brought for the purpose by or on behalf of the person entitled thereto. Any person to whom payment, delivery, transfer or issuance has been made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.

This is the affidavit which is needed:

§ 64.1-135. Affidavit relating to real estate of intestate decedent.

Upon the death intestate of a person owning real estate, any person having an interest therein, including a personal representative who has qualified, may execute an affidavit, on a form provided to each clerk of the court by the Office of the Executive Secretary of the Supreme Court or a computer-generated facsimile thereof, setting forth briefly (I) the real estate owned by the decedent at the time of his death situated within the city or county where such affidavit is to be recorded; (ii) the intestacy; and (iii) the names and last known addresses of the heirs at law. The clerk of the court of the county or city in which deeds are admitted to record and in which such real estate or any part thereof is located, shall, upon the payment of the fees provided by law, record and index the same as wills are recorded and indexed.

The clerk of the court of the county or city where such affidavit is recorded shall transmit an abstract of said affidavit to the commissioner of the revenue of said county or city as in the case of deeds conveying real estate. Upon receipt thereof by said commissioner, such real estate may be transferred upon the land books and assessed in accordance therewith.

So, Ijjaff, which affidavit do you have? The one I linked to (here) or the one described in Section 135? If it is the former, you have to get the other one. Here is the actual form.

Then, once you have obtained permission from the bank for the step-father to assume the loan (or otherwise dealt with that issue), sign the affidavit before a notary. It wasn't clear whether you are actually in the U.S. If not, you need to contact a U.S. counsulate to arrange notarization. At the same time, execute a quitclaim deed from you to the step-father. Then get the affidavit and the deed recorded in Virginia (the county where the property is located).

JudyKayTee · Jun 28, 2010, 08:14 AM

And I agree - sometimes a "don't ask, don't tell" policy works. I got divorced, never advised the bank the house was signed over to me, I paid off the mortgage.

AK lawyer · Jun 28, 2010, 01:09 PM

Originally Posted by AK lawyer

So, Ijjaff, which affidavit do you have? The one I linked to (here) or the one described in Section 135? If it is the former, you have to get the other one. Here is the actual form.

Oh. I missed a couple of (obvious) things:
1. this form is for someone who is qualified as a PR. You can't avoid probate with this.
2. It is only for intestate probate cases. Doesn't apply where there is a will.