If your spouse passes away, but you didn't sign the promissory note or mortgage for the home, federal law clears the way for you to take over the existing mortgage on the inherited property more easily.
When selling a house with your name on the deed but not the mortgage, it's crucial that you understand the mortgage loan and identify any terms that might impact the sale. While the mortgage might not be in your name, the mortgagor is still obligated to fulfill those terms.
To be safe, the general rule of homeownership comes down to whose names are listed on the title of the home, not the mortgage.
For a community property in California, it depends upon when and how their spouse acquired the property. The law asserts that all property purchased during the marriage, with income that was earned during the marriage, is community property.
If you are not on the mortgage for whatever reason, you are not liable for paying the mortgage loan. That said, you get your spouse's interest in the property if they die. However, if you default on mortgage payments, the mortgage lender has the power to foreclose on the home and evict you.
In many cases, the spouse can inherit your house even if their name was not on the deed. This is because of how the probate process works. When someone dies intestate, their surviving spouse is the first one who gets a chance to file a petition with the court that would initiate administration of the estate.
Regarding property ownership, two essential documents are the deed and mortgage. Out of these two, the deed is undoubtedly the most important one. It acts as concrete evidence of your rightful ownership of the property.
If your name is not on the mortgage, you are not responsible for the debt or payments. However, if your name is on the deed, you will still have an ownership interest in the home.
It is generally impossible to evict a property owner whose name is on the deed. However, let's say there are unresolved debts, like mortgages or liens. A lender or lienholder may initiate foreclosure proceedings. The property could ultimately disappear as a result of this.
It is possible for a homebuyer to be named on the title and not the mortgage.
What if my Former Spouse is on the Deed but not the Mortgage? If your spouse is on the deed but not the mortgage, they own the house but are not liable for the mortgage loan and the resulting payments.
The short answer is: You, the homeowner, typically hold the deed to your house, even when you have a mortgage.
The right to potentially assume (take over) the mortgage.
All successors in California have a right to apply for an assumption of the loan, as long as the loan is assumable. The servicer may evaluate your creditworthiness, including your credit scores, when considering you for an assumption.
If your husband dies and the house is in his name, the house will usually pass to you as the surviving spouse.
If the property is not in your name, you will need to determine if you have the legal right to sell it. This could be the case if you are the executor of an estate, the power of attorney for the owner, or if you have a valid contract or agreement with the owner giving you the right to sell the property.
If your name is not on the mortgage, you're not obligated to pay money to repay the loan. If your name is on the deed, then you're an owner of the property. If it's only your name, you can sell or rent the property as you wish.
How does divorce financially affect women? Generally, women suffer more financially than do men from divorce.
In the states with community property laws, all assets, including houses, cars, jewelry, etc., are divided in half between the spouses. It means that if you bought a house during your marriage, it qualifies as jointly owned, even if only your name is on the title or deed.
If solely in the deceased spouse's name
The surviving spouse can often assume the mortgage, but this process may involve credit checks and lender approval. If the surviving spouse cannot assume the mortgage, other options must be explored to prevent foreclosure.
Both people do not have to sign the title or mortgage. Depending on the financial situation of each person you may only want one person to sign the mortgage. Usually both people want to sign the title to ensure if anything happens between them, they both have ownership rights to the property.
If you purchased your house during the marriage, the court categorizes it as marital property. However, if you purchased the home using entirely separate property funds, and your spouse's name does not appear on the title, the court may award it to you as your separate property.
If he did not have a will, state statutes, known as intestacy laws, would provide who has priority to inherit the assets. In our example, if the husband had a will then the house would pass to whomever is to receive his assets pursuant to that will. That may very well be his wife, even if her name is not on the title.
While some marital assets pass by default to the surviving spouse, some assets pass to the surviving spouse by way of beneficiary designations. There are two types of designations: payable-on-death (POD) designations and transfer-on-death (TOD) designations.
Most property you or your spouse got during your marriage is marital property. If there is a title or deed, it does not matter whose name is on it. It is still marital property unless it was a gift or inheritance. If something is marital property, it is owned by both of you.