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Probate Blog

Federal Law Prohibits Lenders from Foreclosing on Home after Death of Borrower

Question:  My spouse borrowed money to buy our home and held sole title to the land.  He died and I became the sole owner of the home.  The lender is threatening to call the balance due on the loan and foreclose on the property.  Can the lender force me to refinance and foreclose on the home if I do not refinance?

Answer:  No.  A federal statute called the “Garn–St Germain Depository Institutions Act of 1982″ prohibits lenders from enforcing due on sale clauses in certain situations.  A due on sale clause refers to language in loan documents that gives the lender an option to demand payment in full of the balance owned if the borrower transfers title to land that is security for the loan.

When a loan document contains a due on sale clause and the one borrower dies the lender may or may not be able to call the loan.  If the land that is security for the loan goes to the spouse of the borrower the Garn St. Germaine Act prohibits the lender from enforcing the due on sale clause.  See 12 USC Section 1701j-3, which states:

“With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units . . . or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon— . . .

(3) a transfer by devise, descent, or operation of law on the death of a joint tenant . . .

(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 . . .
(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.”

See a Chicago Tribune article called “6 Situations Where The Lender Can’t Call Your Mortgage.”

By |December 3rd, 2014|

Arizona Probate Exemption for Vehicles

Question:  If I die, how can my heirs avoid probate of my vehicle registered with the Arizona Department of Motor Vehicles?

Answer:  Complete an Arizona DMV form Arizona Vehicle Beneficiary Designation For Vehicle Title Transfer Upon Death form 96-0561 R07/11 for each vehicle.  When properly completed and attached to the title of the vehicle, your heir(s) can use the form to change the title of the vehicle after your death without the need for an Arizona probate.

By |October 15th, 2013|

Is a Handwritten Will Valid in Arizona?

Question:  Bart Simpson asks, before she died my mother Marge Simpson who resided in Sun City, Arizona, wrote the following on a piece of paper: “On my death I give my home to my daughters Lisa Simpson and Maggie Simpson.”  She signed and dated the note.  My father Homer died before my Mom.  Is the note a valid Will in Arizona?

Answer:  Yes.  Arizona Revised Statutes Section 14-2503 states:

A will that does not comply with section 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

I’m sorry to tell you that you have been disinherited by your Mom.  The home will have to go through probate in an Arizona probate court unless the value is less than $100,000.

To learn more about this probate exemption for Arizona real estate see “Small Estate Probate Exemption – Real Property.”

By |October 1st, 2013|

Must the Personal Representative Come to Arizona

Question:  I would like to be the personal representative of my loved one’s estate who was an Arizona resident.  Will my duties require that I come to Arizona?

Answer:  Maybe.  We can open a probate and get a non-Arizona person appointed as the personal representative of the estate of a deceased Arizona resident in most cases without the need for the personal representative to come to Arizona.  If any court hearing are held, the personal representative is usually able to participate by phone.

Note:  One of the duties of the personal representative is to collect and protect the assets of the decedent’s probate estate.  This duty will require the personal representative or somebody trusted by the personal representative to take control of the assets.

By |September 18th, 2013|

Arizona Small Estate Probate Exemption Amounts Increased

Effective September 13, 2013, Arizona law changed to increase the maximum dollar amounts for exemptions from probate for estates of Arizona residents.  The small estate exemptions amounts are now $75,000 for personal property and $100,000 for Arizona real property.

To learn more about these two small estate probate exemptions read my articles called:

 

By |September 13th, 2013|

Can the Estate Reimburse the Payor of Legal Fees?

Question:  If I advance the funds needed to pay the estate’s legal fees can the estate repay the money to me?

Answer:  Yes if the estate will have sufficient funds.

By |September 10th, 2013|

How Long Does the Typical Arizona Probate Last?

Question:  How long from opening the probate until it can be closed and completely ended?

Answer:  When we do a simple uncontested probate the time from when we are hired until the probate is closed is usually five to six months.  The probate could take less time if Arizona law didn’t require that we publish a notice to creditors in a newspaper and wait four months to see if any claims against the estate are made.

By |September 1st, 2013|

Can the Personal Representative be Compensated?

Question:  Can the personal representative of an Arizona probate be compensated for services rendered as personal representative?

Answer:  Yes, but all payments must be reasonable and are subject to court approval.  More often that not when the personal representative is a close relative of the decedent the personal representative elects not to be compensated.

By |August 23rd, 2013|

Can You Do Probates in All Arizona Counties?

Question:  Do you do Arizona probates only in Maricopa County where you are located or can you also do probates in other Arizona counties?

Answer:  We are able to represent personal representatives who open probates in all counties in Arizona.  When we do a probate outside Maricopa County we file court documents by mail or electronically and are almost always able to make court appearances (if any are needed) by telephone rather than in person.

By |August 18th, 2013|

My Loved One Died without Any Assets Do We Need to Do a Probate?

Question:  My loved one was an Arizona resident who died without owning any assets that remain in his name?  Must our family do an Arizona probate?

Answer:  No in most cases.  There are several reasons to open a probate:

1. To use the legal process to collect assets of the deceased that did not transfer automatically on the decedent’s death.

2. To get a personal representative appointed by the court so the PR can sign and file documents such as tax returns on behalf of the estate.

3.  To give notice to unknown creditors of the decedent so as to start the statute of limitations on collecting debts of the estate so that claims that are not filed with the court will be cut off.

4.  To pay creditors who have allowed claims.

5.  Make sure that the probate estate’s assets are distributed to the lawful heirs after all liabilities of the estate are paid.

If none of the reasons for having a probate applies then a probate is not needed.

By |July 27th, 2013|