Trusts & Estates Law/intestate succession

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Question
Hello
  I have been paying mortgage on mothers home for ten years. She died intestate and  I am only heir. I have documents from surrogate as administrix. My concern is I have tax lein on personal taxes. I haven't transferred house in my name for fear of losing mothers home. Also afraid mortgage company will not let me keep house because of debt. I have lost out of using yearly interest on home.All of monies paid to mortgage company was my personal money. There was no one else who could have taken over payments, and I didn't want mothers home to be lost, Can you advise?

Answer
Thanks for your question.  I'm only admitted to practice law in California, so you'll need to contact a New Jersey lawyer about how transferring title to your name will affect the tax lien.... I presume that the tax lien will be "attached" to the house and that if you tried to sell or refinance it, the lien would need to be paid off first, but I don't know.  I also don't know if the tax authority would be able to foreclose on the house if the tax bill isn't paid (that falls more into the scope of a real estate lawyer's practice ...).

As for the mortgage, assuming that the "Garn-St. Germain Act" applies, then the lender cannot foreclose because of your debts or credit rating .... If your mother's house is residential real property containing 5 or less dwelling units, then the lender cannot excercise a "due on sale" clause if the property is transferred to a relative as a result of the death of the borrower.  See http://www.law.cornell.edu/uscode/text/12/1701j-3  Section (d)(5).

The Garn-St. Germain Act is a federal law, so it applies all over the U.S.  However, it does not apply to every loan situation.

In addition, this only protects you from having to "qualify" for the loan - if you fail to make payments on the loan, then the lender can foreclose.

Hope that helps.

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Janet Brewer

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BE CAREFUL about taking legal advice from non-lawyers.

I am a licensed attorney in California. I am available to answer questions about probating estates, preparing wills and trusts, administering estates and trusts, forming family limited partnerships and limited liability companies, and establishing a wide variety of estate and gift tax-sensitive trusts (charitable trusts, children's trusts, irrevocable life insurance trusts, etc.).

I can also answer questions regarding the preparation of estate tax returns (Form 706) in taxable estates. Please note that I do not prepare trust income tax returns and cannot provide you with any information about that type of return.

Please note: I am only able to practice law in the State of California. I cannot answer specific questions about other states' laws; I can only provide some "general" information that may or may not apply to your situation.

Experience

I have practiced California estate, gift-planning, and probate law exclusively since 1991. I am certified as a specialist in estate planning and probate law by the California State Bar Board of Legal Specialization (there are less than 125 such specialists practicing in Santa Clara County and fewer than 7,000 practicing in California - out of over 170,000 lawyers statewide).

I have served as an Instructor in the CFP (certificate in financial planning) program at University of California Santa Cruz, teaching the estate planning segment.

Organizations
Silicon Valley Bar Association
Wealth Counsel
Wealth Advisors' Forum
Executive Committee Member, Solo and Small Firm Section of the California State Bar (appointed to a 3 year term by the California State Bar Board of Governors)

Education/Credentials
I received my law degree (J.D.) from University of Denver Law School in 1975. I was admitted to the Colorado Bar in 1975 and to the California Bar in 1977 (NOTE: although I am a member of the Colorado Bar, I am on INACTIVE status there). I earned an M.B.A. in 1982, and I earned a Masters Degree in Taxation Law (LLM) at Golden Gate University Law School in 2010 (with honors).

More at:
http://www.calprobate.com

Awards and Honors
2007, 2008, 2009, 2010, 2011, & 2012 - chosen as a "SuperLawyer" - one of the top 5% of Northern California lawyers practicing in the estate planning and probate area (www.superlawyers.com). Avvo Rating of 10.0/10.0

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