What type of lawyer am I looking for?

The way I see it, years ago your friend bought a house, and took out a mortgage.

The house was purchased from Grandma, and the mortgage was loaned by Grandma.

Just because Grandma died doesn't change that your friend bought the house, and owns the house.

Just because Grandma died doesn't change that the mortgage is still outstanding. Your friend's widow is still paying on the mortgage, and may decide to refinance to pay it all off by getting a loan from a bank, or may still elect to continue paying the mortgage to the estate until it's fully discharged. In any event, the widow owns the house as long as it hasn't been reposessed.

But talk to a lawyer about all this. The easiest way would be getting a mortgage on the house to pay off what's left of the note and then telling uncle to go pound sand.

If the wife had no claim or rights, it seems like she should have been evicted when the husband died. Maybe the uncle now owes her reimbursement for the money she paid toward the note and repairs in the last 3 years?

You're right. She definitely needs an attorney. I'm just hoping to see the dick uncle get screwed. 

When we bought our house, the old lady held the mortgage.  When she passed a nephew or somebody contacted us asking if we could pay it off just to clear this out.  He admitted he had no claim except the $xxx/month, but asking.   We decided to pay him, but at IIRC 15-20% off the balance.  He gets a chunk, we get 20% off and no more payments.  It was done above board with lawyers and all, he wasn't a crook or anything.

Mr_Asa said:

Wally (Forum Supporter) said:

In reply to camopaint0707 :

There is a written agreement, signed by the husband and grandmother. The uncle is the husband's. His thought is that since both parties are passed it's no longer valid. 

... that's not the dumbest thing I've heard, but it might be the dumbest today.

i just spit my lunch onto my computer screen reading this... luckly day old fried rice doesn't make too much of a mess

In reply to the_machina :

you don't own a house when you sign a mortgage. you do not own a house when you make the first payment. you own a house when you make the FINAL payment, and the release of lien is processed.  wally's friend does *not* own the house. his friend still owes money to Grandma ('s estate).

I sure hope this the deed was transferred and remainder of the mortgage is owed to the estate.  It it was more of a rent to own agreement it could suck.  I never really thought about purchasing from an estate or trust in this way.  Seems legit, uncle could be out of the home value as it's not grandma's anymore to inherit from.  If the deed it still in Grandma's name it could get messy.

A coworkers grandma offered to let her kids sell their house and move in with her at the lake house.  Good idea in this market.  They were smart and offered to sell their house, buy Grandma's and let Grandma live with them.  Clean.  Now Grandma has money in the  bank. 

Type of lawyer = nasty one, ask for references.

Twice I hired the nasty ones, twice I was happy with the results.

In reply to AngryCorvair (Forum Supporter) :

Your statement is not correct. If you have a mortgage on your property, you own the house but the lender holds a lien on the deed/title. There's a big difference. My house deed is in my name but the deed is encumbered by the mortgage. The bank does not own my house but has a claim on it should the mortgage terms be violated. 

dculberson is correct.

You own a house when the deed is in your name.  The mortgage holder has a claim to it ONLY if you fail to make payments in accordance with the lien. 
 

Owning it "free and clear" typically means you own it with no liens from a mortgage holder (but you can still lose it if you fail to pay your taxes).

dculberson said:

In reply to AngryCorvair (Forum Supporter) :

Your statement is not correct. If you have a mortgage on your property, you own the house but the lender holds a lien on the deed/title. There's a big difference. My house deed is in my name but the deed is encumbered by the mortgage. The bank does not own my house but has a claim on it should the mortgage terms be violated. 

i definitely should have stayed at a holiday inn express last night. :-)

bottom line is quite similar between the two, though:  stop paying? they can put you on the street.

Wally (Forum Supporter) said:

A friend and her husband bought their house from his grandmother. There was no mortgage, grandma was holding the note. It's about 2/3s paid for now. The husband passed three years ago, granny passed a month ago. An uncle told her since her name wasn't on the agreement she now needs to pay him current FMV or leave. Would she be better off with an estate attorney or real estate attorney to find out her rights. In addition to making payments she's invested in numerous upgrades and repairs which he's included in the new higher price.  I feel like if she's not entitled to continue with the original agreement for some reason that she should get back some of what she's put into the property. 

I'm going back to the original post...

You said your friend and her husband BOUGHT the house from grandma.  I hope that is true (meaning, I hope the deed was properly transferred to your friend and her husband).  If so, there won't be much issue.

Even if the deed was only in the husband's name, it would have transferred automatically to the wife when he died.

The note is a different issue.  If the only thing that was in the husband's name was the note, then the only thing that MAY be owed to the estate is the remaining value on the note.  No compensation for current FMV.

In SOME states, heirs are not responsible for debts of the deceased.  This usually doesn't include real estate, but there is a small possibility that the debt died with the husband.  That would mean the uncle gets nothing.

My evil side would really enjoy that.

In reply to AngryCorvair (Forum Supporter) :

Stop paying they can put you on the street. True. 
 

But if the bank owned the property, they'd be responsible to pay the taxes.  Hahaha!

In SOME states, heirs are not responsible for debts of the deceased. 

The heirs are never responsible for the debts of the deceased. However, the estate of the deceased is. 

If there is a written contract for the sale of the house, the estate has to honor it. For that to happen, the estate needs to go through probate. Probate is where the judge and the executor of the estate complete the contractual obligations of the estate and sell off what is necessary to close out debts of the estate. That would include the contract to the person buying the house. Future payments should go to the executor of the estate. That may be the uncle if he was named executor. If no executor is named then the courts will assign it or assume that role. 

You need an estate attorney to force probate, and your friend needs to have her ducks in a row with records of payments and the written contract. 

In reply to Toyman! :

You're right. I stand corrected. 
 

There is one exception...

Establishing an estate is not a requirement in some states if the estate is smaller than a particular threshold. This avoids probate, but it never applies to real property. 

IIRC, the threshold in SC was $20,000 when my Dad died. We never established an estate, and there was no probate because he owned no real property. 
 

So, there is the (very small) possibility that the debt was not secured by the real estate and that the estate size was below a size that required establishing an estate. 
 

Unlikely.  But I'd really like it if it turned out that way. 
 

Regardless, we are all in agreement. Wally's friend needs an estate attorney. 

Ok I am a retired real estate attorney so I'll make a stab at some questions. 
did grandmother deed property to husband. If so this is a husband wife probate question. And anyone can tell uncle to FO. In Florida a deed to h and wife passes to surviving spouse without probate if deed lists them a h and w. But seemingly regardless if there is any evidence of a sale to h and w then the remains issue seems to be w owns house does she immeidatly have to pay off balance of note upon grandmother death. Probably depends what note says. If there is no mortgage w may get the house free of debt if the note was husbands alone. So I'd say step one research deed to property . If deed is in h name it's a probate issue between h a w as to ownership of house. Status of note/mtg is a probate issue between grandmother and wife . After that wife needs an estate lawyer with a law firm that includes so good real estate lawyers.  And as many have said uncles position that there is no person alive so he wins is wishful thinking.

In reply to grouperalley :

Thank you for coming out of retirement to give me an education! 

grouperalley said:

Ok I am a retired real estate attorney so I'll make a stab at some questions. 
did grandmother deed property to husband. If so this is a husband wife probate question. And anyone can tell uncle to FO. In Florida a deed to h and wife passes to surviving spouse without probate if deed lists them a h and w. But seemingly regardless if there is any evidence of a sale to h and w then the remains issue seems to be w owns house does she immeidatly have to pay off balance of note upon grandmother death. Probably depends what note says. If there is no mortgage w may get the house free of debt if the note was husbands alone. So I'd say step one research deed to property . If deed is in h name it's a probate issue between h a w as to ownership of house. Status of note/mtg is a probate issue between grandmother and wife . After that wife needs an estate lawyer with a law firm that includes so good real estate lawyers.  And as many have said uncles position that there is no person alive so he wins is wishful thinking.

Throw a few hereto's and therefore's in there and that should settle the case

I was going to say, "uncle" has zero say in E36 M3. Just because he is "blood" doesn't mean jack here. There should have been a meeting when hubby died and set forth until granny died. Possession is still 9/10. The previous agreement between hubs and granny is precedence here. She assumed husband's interest here when she kept paying imo. But either way this is estate/probate attorney work here...

In reply to grouperalley :

Thanks for that, I haven't seen the paperwork so I don't know what was done as far as the deed and other paperwork. Being young and not really having an understanding of what to do there's a chance none of this was done with whatever agreement they signed. I asked her to get whatever paperwork she has together and contact an estate attorney. She didn't bother when he passed because nothing else was in his name.  

Something else to consider is to go on the county records website and look up the real estate history / title for the property. It'll show taxes paid, sales, deed info, etc. If the house is listed as owned by husband (or wife) then you're in a very good place. If it's still listed as in grandma's name, then you'll need much better paper copies of the sale document.

 I have a feeling that uncle only pulled the trigger on this after doing some due diligence and finding out that the property was not in the occupier's name and that the whole thing was a handshake rent-to-own deal done between two people who are now dead. If he is executor, I would guess that he used some of his privileges as suck to pay for a legal opinion/advice on how to maneuver this path.

If that was the case, and the occupant does not have some form of valid contract to dispute the claim, the estate would proceed as if the house were just a rental property to be disposed of.

An honest one.

I'll be here all week, folks.

Datsun240ZGuy said:

An honest one.

I'll be here all week, folks.

an Engineer dies and goes to Hell.  the place sucks.  friggin' hot.  so the Engineer designs and builds an air conditioning system, which certainly improves things.

about that time, St Peter realizes he made a mistake, and the Engineer was supposed to be in Heaven.  So God calls Satan and says "hey, i need you to send that Engineer up here."  Satan refuses, and God threatens to sue.  Satan laughs and says "Where are you gonna get a lawyer?"

NOHOME said:

 I have a feeling that uncle only pulled the trigger on this after doing some due diligence and finding out that the property was not in the occupier's name and that the whole thing was a handshake rent-to-own deal done between two people who are now dead. If he is executor, I would guess that he used some of his privileges as suck to pay for a legal opinion/advice on how to maneuver this path.

If that was the case, and the occupant does not have some form of valid contract to dispute the claim, the estate would proceed as if the house were just a rental property to be disposed of.

That's what I'm afraid of. 

I sure hope she isn't screwed, but if she is, she can look in the mirror to see who's to blame.

Handshake deals, and family deals are just fine, but sign the goddam paperwork before you pay.