When is succession required
My husband's parents co-signed the mortgage when he
bought our house. We would like to re-finance, but his
father has since passed away. Everything passed to his
mother. Do we have to open succession to re-finance
and and my name to the mortgage or not?
1 Answer from Attorneys
Re: When is succession required
Who is listed now as legal owner(s) of the property? Is it in your husband's name or his parents' names or both? The legal owners of the property would normally be the only persons who might be able to "encumber" it (i.e., put a mortgage lien on it). Whose name(s) are on the first mortgage? And are you wishing to re-finance using the same mortgage company or a new, different company?
If your husband's parents are named legal owners of the property (i.e., they bought it with him or for him) and your father-in-law is now deceased, then I would suspect that you cannot avoid doing his succession so that a new mortgage might be signed for the re-financing you have planned. The new mortgage company is probably going to want a "clean" title before loaning you the money--if the property is owned in part by someone who is deceased and the succession has not been done yet, the title is not "squeaky clean."
If your husband is the only person named as legal owner of the property and his parents just co-signed the original mortgage, you may not have to do his father's succession right now if your new mortgage company is O.K. with you signing the new mortgage as a new co-signer (i.e., assuming you can equal or exceed the income/security level that your in-laws probably provided the first time). Have you asked the new mortgage company what they will require given the facts? Some might be O.K. with it as is; some might want different things before going through with a new loan. That would be the first place to start before going out and doing a succession. You may ultimately have to do it but check with the lender(s) first. You might be surprised.