General Question

AshlynM's avatar

Does affidavit of survivorship entitle me the house as legal owner?

Asked by AshlynM (9458points) December 9th, 2010

What does this part mean to you?

“The decedent and affiant held such interest in said real estate until the decedent’s death (date of death here), at which time affiant acquired the decedent’s interest in the real estate as the sole surviving tenant.”

This means that legally, the house IS mine to do whatever I want, right? My mortgage company refuses to believe and won’t accept the papers I mailed in as proof I legally can do anything to the house I want.

My name is on the title and deed for the house but not on the note.

I want to understand why my mortgage company is fighting me on this. I only want the loan documents associated with my account sent to me and they can’t do that right now because according to them, I am not the primary account holder.

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6 Answers

YARNLADY's avatar

It is the typical misunderstanding about the difference between ownership of the house and the outstanding loan. The holder of the loan has the primary right of ownership until the loan is paid off. The affidavit is incomplete in that it doesn’t state “with encumbrances” or in other words the estate has to pay off the loan first.

The new owner does not have to be added or included on the outstanding loan. In most cases the loan becomes immediately due and payable.

Hypocrisy_Central's avatar

What @YARNLADY says sound quite right. The mortgage holder owns the note on the house so even if you are essentually willed the house the details of the note will describe what is to be done with it in the event the note payer dies. If there was no addendums or contengencies stating that the loan is forgiven at the time of death then someone has to pay it off or service the note.

Tropical_Willie's avatar

The answers from @YARNLADY and @Hypocrisy_Central sound right. The important phrase is, “at which time affiant acquired the decedent’s interest in the real estate as the sole surviving tenant.” The way I read it is, you are now sole tenant NOT owner/loan holder.

You need a lawyer.

ththththth's avatar

Agreed with @Tropical_Willie ... You have the right here as you have been effectively given the house. Grounds for a lawyer would be that the house is yours and that no-body has ownership but you, as the previous owner has died and all rights in express of their last will and testimony hold! good luck =~)

JLeslie's avatar

@AshlynM What do you want to do to the house? The answers above sound like they are leading you in the right direction. If you have the deed and title in your name you are the owner, but whoever holds the note/loan also has an interest and ownership in the property until the debt is paid off.

Don’t let the word tenant throw you, as someone alluded to. Tenant can be used as a designation of an owner in legal jargon. Tenants in common for instance is a legal term uswd to describe when two or more people own a property together without rights of survivorship to eah other.

john65pennington's avatar

Everyone above seems to be on the right track. bottomline is that she needs to consult a real estate attorney for the correct advice in her state. the laws vary greatly from state to state.

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