[WSBAPT] Assumption of Mortgage by Surviving Spouse

[Marcus J. Fry]

Nick:
Honestly, I have never tried to force the bank to allow the surviving spouse(if not already on the loan)/surviving heir to assume the loan.  The Garn St. Germain Act essentially states that the bank cannot trigger the due on transfer clause for death if the single family residence is passed to an heir.  I generally just leave the probate open so that the spouse/heir has authority to communicate to the bank.  Also, there is a huge benefit of not assuming as the surviving spouse/heir does not have his/her credit impacted as he/she is not on the loan.  I just deed the property from the estate to the surviving spouse/heir and move on.  If there are multiple beneficiaries, then that is different and you may need indemnification/assumption of liability agreement between the beneficiary receiving the house and the other beneficiaries not receiving it.

-Marcus


Marcus J. Fry
Attorney | Witherspoon * Kelley
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Nick Pleasants
Sent: Tuesday, September 27, 2022 7:01 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Assumption of Mortgage by Surviving Spouse

Hi All,
Have you successfully obtained an assumption of mortgage by surviving spouse recently? It seems to me like all banks are denying it and want the survivor to refinance. They impose additional requirements such as a credit check and occupancy as primary residence. I don't see any such requirement in the Garn St. Germain Act, 12 USC § 1701j-3. I came across this article https://link.edgepilot.com/s/42c39a4c/BFxNGLsYBkSzrf1Y2RYj7w?u=https://info.wealthcounsel.com/blog/transferring-title-of-mortgaged-real-property that discusses the issue of occupancy requirement not being part of the Act. Does anyone have a recent positive experience? Were you able to persuade a bank to follow the Act if at first it was reluctant? I had several successful assumptions before the pandemic, but lately I'm not having luck. Because of the difference in rates now, I might have to make some caselaw if the bank won't comply...
Best,
Nick

Nicholas Pleasants | Shareholder

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