Will question:

dzug1

It will depend on the exact wording of the will as to whether the mortgage comes out of your share or not - and you may need legal advice on this.
The will may specify who is to bear those charges. I'm not sure of the default position if it doesn't - but a definition of a residuary beneficiary is he gets what's left after everything else has been paid


As you have described it you are the residuary beneficiary

Seanymph

The mortgage is 80k, the house value is about 150k.

The rest of the estate includes any ready cash plus a jointly owned house with me.

I am frightened I would have to sell OUR house to repay the mortgage but X would get a free and clear house.

jackieblack

Seanymph wrote: »

The mortgage is 80k, the house value is about 150k.

The rest of the estate includes any ready cash plus a jointly owned house with me.

I am frightened I would have to sell OUR house to repay the mortgage but X would get a free and clear house.

Is your house owned as joint tenants or tenants in common?
Are you anticipating the value of the estate to be more than 150k after the mortgage and any other debts/expenses have been repaid?

Seanymph

erm - our joint house is in France. No idea how it's owned, but we each inherit the others share.

The other 'value' of the estate is only what's in the bank etc - and wouldn't be that much.

Would the entire estate balance out at over £150? Not at the moment, but sooner or later it will.

My problem is that without OH to pay the mortgage I can't pay it. It is against HIS house in HIS name.

The house is left elsewhere, but if they get the house and I get the mortgage I'd end up having to sell my own home, or our home, to pay it.

regprentice

Should first clarify whether the mortgage was subject to an endowment or insurance policy as ideally either would pay off the mortgage in question (and similar may be true in the case of your own part owned property if it is still mortgaged).

Otherwise the executor will have to settle the mortgage with the bank before the estate can be passed on. I can see 3 ways this might happen

If there is sufficient loose cash in the estate to do that then that would be the 'easiest' way but that leaves you in the position you fear ... most of 'your' cash used up to pay off someone elses house.

or - the house is sold. The mortgage company get repaid their 80K and the other person only gets the residual cash (roughly 70k)

Or - if the will clearly states the house is the wills priority and not enough cash is available to clear the mortgage then the executor may try to liquidate the investment in your house to clear the shortfall on the other persons mortgage. I think this is your primary concern

I would contact the executor of the will and ask for clarification of their intentions... i assume things must already be in progress.

I would (when things are clearer and you have a copy of the will) see a solicitor...i understand its possible to get an inital hours consultation free and if you are adequately prepared this would give you a clearer picture of how best to proceed.

Mojisola

Seanymph wrote: »

If there is a mortgage on a house.

And in the will the house goes to one person, and the remainder of the estate to another.

Does the mortgage go with the house or the estate?

It depends on the exact wording of the will.

Baring any wording that changes this - the usual procedure would be for the executor to settle all the debts (no-one can inherit the mortgage). If the debts can be settled using the available cash, the mortgage would be paid off and X would inherit the house free and clear while Y would get the residue of the estate.

If there isn't enough cash to settle all the debts, the house would have to be sold and that legacy would fail - X would get nothing and Y would receive the residue.

You need legal advice so that the wording of the will can be explained to you.

dzug1

You cannot be forced to sell your own property to meet estate debts nor to take on a mortgage on a property that isn't yours


You cannot lose more than your share of the estate


Another question here - who is the executor? Do you trust him to do the right thing - or even to know what the right thing is? He may be as confused as you are

Mojisola

Seanymph wrote: »

erm - our joint house is in France. No idea how it's owned, but we each inherit the others share.

It's vital that you find out about the ownership of this house.

In the UK, houses can be owned as joint tenants (you both own all the house; on the death of one person, the other still owns the whole property) or tenants in common (you each own a specific percentage of the house).

If it's the same in France and you are the equivalent of tenants in common, his part of the house will form part of his estate if it's dealt with under the English will. Does he have a separate will to deal with the French property under French law?

regprentice

If the OP could clarify.... rereading seanymphs's posts i think we are talking about a hypothetical situation as opposed to a current urgent need to defend the op's current property? If not please accept my apologies.

I think the issue here might be summarised as... OP's OH has a property they are leaving to another person and has written a will stating this. for whatever reason that property was fully owned but is now being/ has been 50% remortgaged... OP is concerned how this outstanding debt will affect the estate as a whole, and in particular a second (french) property which OP owns half of and the other half would fall within the estate, as and when OP's OH passes away.

This being the case there is a current will which reflects the wishes of OP's OH but could be modified to better protect OP.

Seanymph

reg you are right - in fact they haven't even been signed yet.

Excuse me all, I thought it would be a simple question - these things never are without the detail I should know by now, but I was trying to be simple (and not air too much laundry).

OH and I married - he had his house, I had mine it's a second marriage. We bought limited additional things to the marriage.

We had agreed and drawn up wills which leave his existing house to his children - and my existing house to my children, the residue of our estates (anything accrued during the marriage) to each other.

Since instructing the solicitor he has raised a mortgage on his property which we have used to buy our house in france.

This house is tied up to be left to each other - and was bought in such a way as to make this possible - we will have seperate french wills (when I get around to it) and we are told by our english solicitor that it will not come into our english estate.

His house, was free and clear when we wrote our wills however now it is encumbered with an 80k mortgage.

I am the executor.

My concerns are exactly as stated.

If they get the house outright and there is a mortgage remaining of 80k (obviously it's going down) then were does the 80k come from?

It is a repayment mortgage, capital and interest, over 15 years, and uninsured for his death.

Now since we have received the final wills (and a bill for £480!) it occurred to me this may be a muddle I need to sort.

Whether it's through insurance on the mortgage, changing the wills wording, or ensuring we pay it back quicker....... or it may not be a problem for me, it may be that the mortgage not being paid would mean they house would be repossessed, and only the remainder would go to his children which may well not be acceptable to him.

I just need to understand the implications - and preferably without inflating the wretched overpriced solicitors fees any more than already.

I've been robbed as it is.