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    jejeff184's Avatar
    jejeff184 Posts: 2, Reputation: 1
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    #1

    Oct 4, 2008, 08:50 AM
    Probate on Mortgage Balance Owed
    At the close of Probate is there an obligation of the heir to satify the balance owed on the mortgage of the deceased? We are the holders of a "deed of Trust" and "Promissory Note"... the buyer of our home is now deceased and willed (by Will) the home to her brother. The matter is currently in Probate. We want payout of the balance owed - as our real estate contract was with the now deceased... not her brother. Do anyone know if the heir is required to pay the balance owed before having the property transferred into his name?
    rockinmommy's Avatar
    rockinmommy Posts: 1,123, Reputation: 82
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    #2

    Oct 5, 2008, 12:50 PM

    Does your mortgage contract include a "due on sale" clause? That would allow you to call the note immediately due whenever any type of transfer of the property takes place.

    Did an attorney draw up the contract and note for you? If so, I would consult that person, or another attorney about the best way for you to proceed on this.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #3

    Oct 5, 2008, 01:20 PM
    Quote Originally Posted by rockinmommy View Post
    Does your mortgage contract include a "due on sale" clause? That would allow you to call the note immediately due whenever any type of transfer of the property takes place.

    Did an attorney draw up the contract and note for you? If so, I would consult that person, or another attorney about the best way for you to proceed on this.


    I agree - this possibility should be covered in the loan papers or, if not, an Attorney will have to work this out.
    jejeff184's Avatar
    jejeff184 Posts: 2, Reputation: 1
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    #4

    Oct 5, 2008, 03:42 PM
    Thank you very much for addressing this. I did look closely at the Promissory Note and it does have a Due on Sale clause which clearly states" If this Note is secured by a Deed of Trust (which it is) or any other instrument securing repayment of this Note, the property described in such security instrument may not be sold or transferred with the Holders's Consent. Upon breach of this provision, holder may declare all sums due under this Note immediately due and payable, unless prohibited by applicable law.

    I was concerned about all this... because when I called the Probate Attorney (who is a relative of the deceased and of the brother who acquired my property in the will) she indicated that the Insurance Policy which was to pay the Mortgage balance would be allocated to the Heir and that it was up to me (the Seller and original owner of the property) to work that out. I thought that was odd. I had just thought that I would be paid by the Probate Attorney -- how stupid of me.

    Thank you again.

    /je
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