Posted by fiKS on 3/26/05 9:16pm
Msg #27861

Name of deceased on mortgage

borrower 1 was given POA by his father when he was ill. Father has now passed away but obviously his name was still on the Title. Refi mortgage has father's name. LO says leave signature line blank for deceased. Deceased name was listed as "borrower" on the first page of Mortgage. Can this mortgage be recorded this way? I think I should be prepared to go back out with new docs.

Reply by Korey Humphreys on 3/26/05 9:23pm
Msg #27864

Fill out an Affidavit of Deceased (?)

It could be Affidavit of Deceased...... however...... I think I'm wrong. There is an affidavit that most states use that allows the dependents of the deceased to write under oath that the person has died.

Also, depending on the wording of the Power of Attorney the son may be able to sign for his father. Some more expierenced notary will clarify my message for you.



==========
Korey

Reply by sue on 3/27/05 6:04am
Msg #27903

Re: Fill out an Affidavit of Deceased (?)

I cannot think of ANY instance where a POA is effective after someone passes away.

Reply by John_NorCal on 3/26/05 9:47pm
Msg #27866

Not being an attorney, or having this happen to me, I nevertheless feel that this could be construed as a fraudulent transaction. The fact that the father has died, changes things needless to say, most notably, ability to pay. I'm not being facetious here. Where is the capacity to pay? You now have a probate situation. Of course as a notary you aren't making the calls as to who is acting with legal authority. As a lender, I would be more concerned. I might be off base here, but I don't think I'm too far from the truth of the matter.

Reply by Shannon/Va on 3/26/05 11:15pm
Msg #27876

I am not an attorney but..... I think that If the son was given the property in the fathers will, I think the deceased fathers name on the mtg is ok but the son's name should also be on there since he would technically be the borrower.
If the son has POA, usually the POA becomes voided after death of the person giving the POW. And if the POA specifically says it is not voided by death, the son can not use that POA to his benefit. Such as he could not transfer title into his name by the POA. If the property was willed to him, the property could be deeded to him as a gift deed that would say son, heir of father, deceased the grantors, to son, grantee.

Reply by Lalas_socal on 3/26/05 11:54pm
Msg #27879

I dont believe that a deceased person can be put on new title, there should be new docs drawn, sounds fraudulent to me, I wouldn't notarize, what are you supposed to do, have a seance to get a sig? I thought all persons on docs had to sign?

Reply by Lee/AR on 3/27/05 12:08am
Msg #27886

Usual 'not an attorney' disclaimer... POA dies when the person does.

Reply by HDW TN37312 on 3/27/05 12:15am
Msg #27890

Had same thing happen. Doc's had to be redrawn. LO was indignant, wanted to proceed, but I told him I would not go to the cemetery to get a signature. The LO ask me what he should do. Told him I was not an attorney. I am a notary and I notarize for “today's” date. I do not editorialize, scrutinize, summarize, or give legal advice. Never heard from him again, but have closed many since, for his company

Reply by sue on 3/27/05 6:08am
Msg #27904

This is just a sloppy mistake. Son didn't remove father's name when he died. No one mentioned during the loan process that dad is now gone. Some companies will let you cross out and initial, some will redraw docs. Not your problem or call. PROBABLY not fraud, just everyone in the line before you not doing their job properly.

Reply by PA Notary on 3/27/05 9:46am
Msg #27913

Sounds like the title co. dropped the ball....should have included a new deed from father to son, and just requested a death cert be returned w/the docs.

Reply by sue on 3/27/05 10:48am
Msg #27919

but the new deed would require someone to think outside the box. I had a purchase last year and during a phone conversation with my seller contact I realized the 'real' seller had passed away. This woman had a POA for him. The title company knew this and was going to use a warranty deed from Deceased Borrower (signed by his POA) to Unknowing Purchasers. Title company processer told me he had never heard of an executor's deed. Settlement proceeded with backdating the next day without me due to title company messing up doc delivery and not believing me when I tried to tell them (they sent me wrong package & I kept telling them I needed a password - docs were to be sent empower w/no password needed). I never did get around to check the court house to see the form of the final paperwork, who actually notarized it and when.

Reply by Sherri-IN on 3/27/05 11:21am
Msg #27922

Normal not an attorney.....

Here is my opinion from a Title point of view. Title does not always know when some one is deceased. LO froget to mention that 1 important piece of information. How this would be handled would depend on how they are in title. If they are joint tentants with survivorship rights then usually an affidavit can be prepared and death cert. attached. If they are Tenants in common or have no vesting then it most likely will have to go to probate and the executor will have to do a deed from the estate to the whom ever recieved the property and the son.

The POA is no good after death and should not be used for the mortgage or any other documents. If POA is used Title will not be able to insure the mortgage.

Reply by Bobbi in CT on 3/27/05 11:31am
Msg #27924

Could be some state and death tax issues, too...

Guess the LO and surviving borrowers were really pushing to get this one done.

Glad it wasn't me.

NOT an attorney. Not giving legal advice. In CT when a co-owner dies, even when in survivorship, there are tax issues that effect the real property that need to be "cleaned up." The possible state and federal taxes tax priority over the mortgage.

On the other hand, the lender will have a hard time collecting the mortgage payment from a deceased owner

Reply by fiKS on 3/27/05 11:33am
Msg #27925

A death certificate was included in return loan docs. I do no feel there is any "foul" play here, simply clerical errors. But I was wondering if the mortage could be recorded the way it is.

Reply by Reggie on 3/27/05 2:52pm
Msg #27933

Usual NOA

I don't think you will have to go back because I think since the borrower is deceased all things change. No LO in his right mind would do a loan to a deceased person. The next thing that needs to occur is did the deceased die leaving a will or not if no will it will be a couple of years before the property clears the court if there are several heirs. The son has no authority to sign until the estate is settled and he is part of the heirs and then I don't thiink he can borrow on the same terms as his father.

Reply by Lee/AR on 3/27/05 3:26pm
Msg #27936

Believe this:

LOs, like Notaries, DON'T know everything.

Reply by Mary Pierce/Pa on 3/27/05 4:47pm
Msg #27939

There should be some sort of recital in the mortgage that the borrower is deceased. I came across this with a mortgage I did for IREP. I asked my boss who is an attorney and that's what he would have done. Once a person passes away a POA is no longer valid I believe.