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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: death of spouse Posted by Rick, the Probate Guy on April 07, 2008 at 3:51 PM In Reply to: death of spouse posted by robert on April 07, 2008 at 10:55 AM My condolences to you and your family. Before I (or anyone else chooses to) comment, this is rally not the best place to get factual answers to your very State-specific probate questions. Ultimately, you will have a reason to either sell or refinance the "family" property and, since probate is not an overnight process, it's better to make plans to meet with a qualified probate attorney before too much time has elapsed. My thinking is that, from a practical standpoint, the sooner the estate has been completed, the more choices you'll have available should they be necessary. All that being said, here's my standard overview of Garn St. Germain from my files: Garn St. Germain Act re: Loan Assumption This whole issue was settled in the 1982 federal act called the Garn-St. Germain Depository Institutions Act. According to the Act there are only nine exceptions to a lender’s ability to enforce it’s due-on-sale clause and they are: (d) Exemption of specified transfers or dispositions With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon – (1) the creation of a lien or other encumbrance subordinate to the lender's security instrument which does not relate to a transfer of rights of occupancy in the property; (2) the creation of a purchase money security interest for household appliances; (3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety; (4) the granting of a leasehold interest of three years or less not containing an option to purchase; (5) a transfer to a relative resulting from the death of a borrower; (6) a transfer where the spouse or children of the borrower become an owner of the property; (7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property; (8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or (9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board. Your attorney can advise you how best to accomplish the transfer. This could make for some complications should your children still be minors. Follow Ups: Post a Followup: Name : E-Mail : Subject : Comments: : My condolences to you and your family. : Before I (or anyone else chooses to) comment, this is rally not the best place to get factual answers to your very State-specific probate questions. Ultimately, you will have a reason to either sell or refinance the "family" property and, since probate is not an overnight process, it's better to make plans to meet with a qualified probate attorney before too much time has elapsed. My thinking is that, from a practical standpoint, the sooner the estate has been completed, the more choices you'll have available should they be necessary. : All that being said, here's my standard overview of Garn St. Germain from my files: : : Garn St. Germain Act re: Loan Assumption : This whole issue was settled in the 1982 federal act called the Garn-St. Germain Depository Institutions Act. According to the Act there are only nine exceptions to a lender’s ability to enforce it’s due-on-sale clause and they are: : (d) Exemption of specified transfers or dispositions : With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon – : (1) the creation of a lien or other encumbrance subordinate to the lender's security instrument which does not relate to a transfer of rights of occupancy in the property; : (2) the creation of a purchase money security interest for household appliances; : (3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety; : (4) the granting of a leasehold interest of three years or less not containing an option to purchase; : (5) a transfer to a relative resulting from the death of a borrower; : (6) a transfer where the spouse or children of the borrower become an owner of the property; : (7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property; : (8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or : (9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board. : : Your attorney can advise you how best to accomplish the transfer. This could make for some complications should your children still be minors. [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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