Should my stepbrother assume my stepfather's part of the mortgage on Mom's house?

1 answer | Last updated: Sep 14, 2017
A fellow caregiver asked...

My mother, still living but elderly/frail, jointly owns her house (still paying mortgage) along with her recently deceased spouse, my stepfather. My stepbrother has financial POA over his father's finances and wants to assume the mortgage for period of time or indefinitely as house selling in her area is excessively slow. She needs, or ought, to move into smaller place/condo/Assisted Living closer to where I live but she is reluctant to agree to any of this because she wants the equity out of the house. Is it good idea for my stepbrother to assume the mortgage or could that cause multitude of problems down the line? All property after death of our parents was to be divided between the two of us.

Expert Answers

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

Your mother should consult with a lawyer to help her understand her options and to make sure that any agreements between family members are properly documented and fully understood.

You indicated that your mother owned her home with her late husband. Most married couples who own a home together do so as either joint tenants or as tenants by the entirety which would mean that when your stepfather died, his interest in the home passed automatically to your mother. Did your stepfather's Will make any provisions for the payment of the mortgage out of his assets? Did his assets other than the home pass to your mother? These are important considerations.

Even if your stepbrother had an effective Durable Power of Attorney for his father while he was alive, upon your stepfather's death the Durable Power of Attorney ceased to be effective. Consequently he has no authority to act on behalf of his father or access his assets unless such authority was granted in his father's Will.

Your stepbrother certainly could agree with your mother to either give or loan the money necessary to maintain the mortgage payments, but in either case the terms of the gift or loan should be fully understood and documented. If the money were to be done as a loan, it should most likely be structured to be paid back upon the sale of the home, but in any event it is critical that a lawyer be involved to make sure that everyone understands their rights and obligations.