Legal Question in Wills and Trusts in Pennsylvania

My mother recently passed away from a heart attack. The property she lived in PA still has a mortgage. Her property was located in a 55 senior community which has HOA/maintenance fees. Up until now I have been paying those fees, but can no longer continue to pay, it has now become a hardship for me. The attorney who filed my mother's will was notified of her death.

As executor to her will, can I sell the property as a Short Sale. If sold, will I be responsible to pay any taxes for the short sale? Or can I return the property back to the bank as a "Deed in Lieu of Foreclosure". My mother had no other assets. As executor, if the property does goes into foreclosure will that affect my credit history?

Asked on 1/20/13, 3:08 am

2 Answers from Attorneys

Miriam Jacobson Law Offices of Miriam N. Jacobson
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Have you actually done anything to probate the will and administer the estate? Attorneys don't generally "file" wills. Did s/he prepare the will or do something else with it?

As executor named in her will, you can't do anything until you are officially appointed by the Register of Wills in the county where she resided.

Consult an estates lawyer in that county to advise you on your options and suggest possible actions for you.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.

* If the answers to your question confirm that you have a valid issue or worthwhile claim, your next step should almost always be to establish a dialog with a lawyer who can provide specific advice to you. Contact a lawyer in your county or township.

* Another reason for contacting a lawyer is that it is often impossible to give a good answer in the Internet Q&A format without having more information. The unique circumstances of your situation and things that you may not have thought to mention in your question may completely change the answer. If you want to be sure that you have a complete answer to your question and an understanding of what that answer means, establish a connection with a lawyer who practices in the area of your concern.

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1/20/13, 9:10 am
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As executor, yes, you can sell the property. Short sales are only necessary where the property is worth less than what is owed. Is there only one mortgage? If you are considering a short sale, you had better start by finding a realtor who is experienced with these types of things. You also need to contact the lender and find out about that and their requirements. The lender will want the property appraised (you need to have this done anyway for estate purposes) to see if it really is worth less than what is owed. If there is more than one mortgage lender then both will have to agree to the short sale and take less.

If there is only one mortgage, and you do not want the headache of trying to sell, you can see if the bank will accept a deed-in-lieu of foreclosure. Unless your name is on the mortgage, then nothing derogatory regarding the mortgage (either delinquency/deed-in-lieu or foreclosure) should be reported on your credit just because you inherited the property.

If you are serious about the deed - in -lieu, then I would also contact the lender and ask about that too. The sooner you get it out of your name the sooner the HOA fees will be someone else's problem.

Attorney Jacobson is correct. I am not sure what you mean by the lawyer filed the will. If you are the named executor and if the attorney is representing you, the will can be filed if there are no assets that justify probate. If the attorney is not representing you, then why would an attorney file the will?

Unless the will provides otherwise, you need to actually be appointed by the court as the executor of the will. You do this by applying for probate and filing an application for the issuance of letters testamentary. You will get a certificate from the court that you will need to provide copies of to banks or the mortgage lender as they will ordinarily will not deal with a third-party.

You say your mother had no assets - so she had a house, but no car, no bank account and no other debts?

You need to see a probate lawyer in the county where your mother lived at the time of her death (if PA). The probate lawyer can advise as to whether probate is justified or not warranted here and may also be able to help you in dealing with the mortgage lender.

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1/20/13, 10:44 pm

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