Can Someone Answer These Legal Questions

[stewert]

My Father is going to talk to an attorney tomorrow, but I have a bet with him about this, and I wanted to see if anyone knows the answer to these questions before then.

I have one brother Scott, he is my real brother, and I have a half brother Butch.

Over the years my Father has re-financed his home to buy cars etc. and he also has a 2nd mortage on the house. My half brother Butch started paying on one of my Fathers mortages a few years ago. Butch did this to help my Father make it through the month without going broke before the end of the month.

So right now my Father owes a lot of money to the bank, on his home loan, he pays $406 a month on one mortage, and Butch pays $300 a month on the 2nd mortage.

Now in his will he gives the house to me and my brother Scott. My Father tells me that if he dies, Butch plans to take the whole house and kick me out so he can move his daughter in.

I think that if my Father gives the house to me and Scott in his will that makes me and my brother 2/3 owners, and the first mortage payment of $406 transfers to me and Scott. Then as long as we keep paying that $406 a month Butch can not come and take the house. Unless he buys both of us out.

Does anyone know if I am right. It dont seem possible to me for Butch to be able to take a house away from 2 guys who are 2/3 owners when he is only a 1/3 owner. I am not an attorney, so I dont know.

My Father seems to think Butch can just take the house when he dies, I say that is not possible. Unless we do not pay that $406 a month payment, or unless Butch pays off the balance of my Fathers loan.

I can tell you between the 2 home loans almost as much is owed on the house as it's worth. So if it was sold it would probably just pay off the 2 loans with no money left over. He basically borrowed against all the equity in the house, and he will die long before he ever comes close to paying that loan off.

So I want to know if my Father wills the house to me and my brother Scott, and we keep paying the $406 a month house payment can Butch just come in and take the house from us.

I dont think so, it dont seem possible. If anyone has any thoughts on this I'd like to hear them. And we do plan to talk to an attorney tomorrow, so I will find out then.

[libertee]

1. There seem to be some details missing. ..a lawyer is definitely needed

and please see that your father does not default on his payments.

[Fearless]

2. Consult a lawyer

Such things are too important to speculate on.

Also, who's names are on the deed to the house and the mortgage loan? If it is your father's, then regardless Butch should have no legal claim to it even if he's been paying for your father.

[izzie]

3. I do know that a title is not the same as a morg.

I would say if you hold the title you own the house but some one has to put the morg. right or the bank will own the whole thing. Your brother would hardly pay a morg. if he gets no pay back for it. Some one will have to do some thing about that morg. for sure. Not that I know a thing about such things but that seems with in reason.

[stewert]

5. Deed

The deed my Father has says this.

Quit Claim Deed

The grantor, Florian S. (My Father) a widower who has not since remarried and surviving joint tenant of Pat S. (My Mother who died in 1998) deceased, and co-grantee herein, conveys and quit claims to Florian S. and Butch S. father and son, as joint tenants and not as tenants in common.

Ok, does that mean my Father and my half brother Butch co-own the house?

That's the way I read it, of course, I could be wrong.

[AP]

8. The lawyer will give you the answer, but joint tenants with a right of survivorship would take the

whole house and there wouldn't be anything to pass on in the will.

That's the difference between a joint tenancy and a tenancy in common. With the later, your father could will his half of the house. But with the former, the other joint tenant gets the share on the other's death.

[izzie]

9. Quick claim deed does stand in court but you do need a lawyer

I am going to wait to you tell me what they do I am so 'I do not know' on these things. I just know that people do mix up a morg. as being the owner of the property and title and morg. are not the same thing. Usually a bank does not give money on a morg. with out a way to get the property so want the morg. holder to hold the title. States are also different on this stuff. I once was in trouble with it. We held the morg. and the real estate agency would not give us the deed. We had to go to the state board to get the agency to give up the deed. So they owned the house we were paying for. Why we also need over sight in the banking business, for sure.

[WheelWalker]

4. I'm not an attorney; and, I didn't sleep at a Holiday Inn last night, either....

but I've been advising attorneys for over twenty years and have some experience in dealing with the intentions of persons who have reached room temperature. Attorneys have opinions that depend for their value upon the accuracy and completeness of the facts they analyze in light of existing law. The law is what a judge says it is, until another judge says he or she is wrong. The Supreme Court is not final because it's infallible....it is infallible because it is final. So, if you would know what this or that means, don't bother to ask the courts. The answer, my friend, isn't blow'n in the the wind - the answer is blow'n through your shorts.

[stewert]

6. Dear Village Idiot

This is a serious matter, and I do not find your attempt at humor at all funny. If you dont have an answer to my questions dont reply at all.

And dont reply to this with another lame attempt at humor either, move on to another thread where your lame comments might actually be called for.

[MilesColtrane]

7. I believe your half brother can contest your dad's will,

...perhaps forcing a costly legal battle, unless you are able to get him to sign a quit claim to your dad's estate.

As we know, Americans only get just the amount of justice they can afford.

Lawyer up now.

[KharmaTrain]

10. Find An Estate Attorney...

I know...it sound so final, but it sounds like you have issues that they usually handle later rather than sooner. I'd strongly suggest you all meet with an estate attorney who can determine the ownership (before the IRS does) and even put it in a land trust to save you on taxes and other probate matters down the road. You can also protect the house this way.

Also you can address the tough issue of health care...DNR and other such matters that best to think out ahead then have to be forced into a tough choice under a lot of stress. It also could give you a little peace of mind...

Best of luck.

[AlertLurker]

11. L'il Butchie is shit out of luck.

Firstly:
The first mortgage is a Land Titles mortgage and the lender of this type of mortgage has priority, even if forclosed upon. That is to say, if no one pays either mortgage or you sell the house, it is the FIRST mortgage that gets paid off first through foreclosure or sale. The second mortgage is an Equitble mortgage which is just as legal as a Land Titles mortgage, but since it is based on the EQUITY (or liquidity, as the case may be) of the property, it does not hold the same PRIORITY.

Secondly:
If the second mortgage was taken out by and is held by your father, NOT Butch, then Butch is shit out of luck. Even though he has been paying the mortgage, he has ABSOLUTELY NO CLAIM to the property via this route. Only the mortgagee (which would, at the time of your father's death, be all three of you) has a claim.

The bad news is that Butch will probably stop paying the second mortgage and Scott, Butch and yourself will have to splt $706 / month to keep the place.

My advice: Sell the house and split the remaining assets - keep the peace.


I am not a lawyer, but I have had a lot of experience dealing with contentious estate provisions...and assholes like Butch!

Have a nice day!

[Phoebe Loosinhouse]

12. I'm not a lawyer and I don't play one on TV

But I think there are several things going on here.

The way the deed is written will determine the outcome. It seems that Butch has at least 1/2 the property and possibly the whole thing, depending on the right of survivorship. Only an attorney can determine that for sure, depending on the laws of your state.

The quitclaim deed I think overcomes the will - he can't give you in his will what he gave away before he died to Butch. Personally, since Butch WAS paying the 2nd mortgage, I think he was entitled to some security. He apparently kept your father in his house. I don't see him as the bad guy in all this. You said something about being kicked out of the house - do you actually live in the house and not pay some kind of rent, or am I just missing something?

Real estate, relatives, deeds and wills can get very, very, contentious. I hope the four of you manage to pull together and do what is fair and equitable to all of you.

[AlertLurker]

13. No offense, but you are almost entirely incorrect.

First:
The deed is immaterial, as it is obviously in the Father's name.
Second:
If the first and second mortgage is in the Faather's neme, Butch has NO CLAIM. Even if he pays it off, he is not the mortgagee. He isn't even entitled to his money back, legally. Butch can pay the payments on MY mortgage, too - it doesn't entitle him to ONE PENNY of the equity.
Third:
Nothing, according to the OP, has been given away, and the will stipulates a three way equal split.
Fourth:
There will be NO quitclaim, since the mortgageor will certainly hold it until the FIRST mortgage is paid out. Then it will go to the SECOND mortgageor, until THAT is paid out. Only THEN will a writ be issued to the mortgagee. The only thing that will change after the father dies is the title will be changed in favour of the three brothers.
Fifth:
As long as your name is on the title and the house is not in default status with the mortgageor, you are legally entitled to live there.

[AlertLurker]

14. Apologies. I did not read the OP's quit claim post.

Please ignore everything I have written previously, as I was unaware that a quitclaim had been issued. You are absolutely right about it. Butch keeps the house, (JOINT tenancy has survivor's rights) the brothers, as the father's beneficiaries, are entitled to nothing.

Sounds like the OP's family is about as much fun as mine.

Again, apologies for not reading ALL posts before responding.

[stewert]

15. Answers

Hey guys, thanks for all the replies.

I talked to my Fathers attorney today, and he said because Butch is a joint tenant on the deed that when my Father dies Butch gets the house.

So even if he gives the house to me and Scott in his will, Butch still gets the house because he is a joint tenant on the deed.

And he said the only way to change it is to get Butch to agree to have his name removed as a joint tenant from the deed. And I doubt very much that Butch would agree to that, unless my Father paid him back all the money he has paid on the other mortage.

Which he can not do because he lives check to check on his social security and pension money.

The attorney said when my Father signed that quit claim deed that made Butch a joint tenant, he basically gave the house to him when he dies.

So I was wrong, but when I posted this I did not know Butch was a joint tenant on the deed, I found that out after I started this thread. Once I saw that he was a joint tenant on the deed I had a pretty good idea that Butch would own the house when my Father dies.

And I dont really care about it. My Father was wondering if me and Scott would get the house when he dies because he gives it to us in the will. Now he knows, and we will not get it.

And between the two mortage loans almost as much is owed as the house is worth. So even if me and Scott were to get the house and sell it, about all that would do is pay off the loans, and pretty much nothing would be left over.

So thanks for the replies.