I found this to be very helpful and thought I’d share it.
Title “to-do’s” for widowed homeowners
Action depends on how title was held before death
BY BENNY KASS, TUESDAY, JUNE 28, 2011.
DEAR BENNY: My husband passed away recently. I need to know what to do and where to go to have his name taken off the title to our house. It’s in both our names, and he left a will stating everything goes to me. Can I do this myself, as money is pretty short now? –Marcia
DEAR MARCIA: My condolences on your loss. You situation is not at all serious and frankly — depending on how title was held — you really don’t have to do anything at all.
Generally speaking, there are four ways that title can be held:
1. Sole ownership — just one person is on title;
3. Joint tenants with rights of survivorship — on the death of one joint tenant, the survivor automatically (by operation of law) becomes the owner of the property. Probate is not required. In fact, even if the deceased person’s will gives the property to someone else, the will is ineffective, because the way that title was held will control the distribution;
4. Tenants by the entirety (T/E) — this is very similar to joint tenants, but reserved for husband and wife. (Note: in some states where same-sex marriages are valid, title can be held as tenants by the entirety.)
T/E is very sacred, and unlike other ways that title is held, cannot be broken or divided without the consent of both husband and wife.
I assume that you and your husband owned the property as T/E. If that’s the case, while you may want to go through the process of changing title into your name as “sole owner,” it really is not necessary. So long as you have your husband’s official death certificate, you own the property by operation of law. The fact that the county still shows your husband as a co-owner is irrelevant. If you ever want to sell, all you have to do is produce the death certificate.
Of course, if you really want to have his name removed, you can ask your attorney to prepare a deed reflecting that you originally owned the property as T/E but on his death the property is now legally vested in your name.
DEAR BENNY: I have been working with my bank on a loan modification, but just received a notice of foreclosure. I contacted the lawyer who is handling the foreclosure process, but she said she is acting on instructions from the lender and there was nothing she could do about stopping the process. What’s going on, and what remedy do I have? –Anonymous
DEAR ANONYMOUS: This is a nationwide problem: The bank and the bank’s lawyer are just not communicating with each other. But help is on the way. In May of this year, for example, the Supreme Court of South Carolina ordered lenders not to foreclose until they can demonstrate that they have given homeowners a meaningful opportunity to modify their loans. And the “demonstration” must be in the form of a certificate filed with the court before any foreclosure can take place.
I also understand that similar requirements exist in New York and Connecticut. Furthermore, the attorneys general of a number of states have been negotiating a number of issues with the banking industry, and your problem is one of the highlighted issues.
Also, many states have enacted legislation requiring lenders to mediate with homeowners before any foreclosure can take place — the goal is to try to reach an amicable resolution, such as a true loan modification.
So, perhaps this new wave of legislation and court orders is “too little and too late,” but it clearly is a step in the right direction for those who have not yet been foreclosed upon.
What should you do? You should immediately contact the attorney general’s office in your state, and file a complaint against your lender. You should also send the bank’s attorney a certified letter (return receipt requested) advising that if the foreclosure takes place, you reserve the right to file complaints (or even a lawsuit) against the law firm. Demand that the attorney get all of the facts; if you have anything in writing from the lender, include that information in your letter to the attorney.
In the final analysis, if all else fails, you should retain your own attorney to file a lawsuit to enjoin the foreclosure sale.
