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  • FIRST POST
    • Adams18
    • By Adams18 14th Jun 19, 2:05 PM
    • 103Posts
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    Adams18
    Inherited Mortgage due to mature... options?
    • #1
    • 14th Jun 19, 2:05 PM
    Inherited Mortgage due to mature... options? 14th Jun 19 at 2:05 PM
    Hello,

    I am embroiled in an extremely complicated situation at the moment, and I am instructing legal services for advice but wanted a fresh perspective from other people. This may be wrong forum, maybe even website...

    If you can't keep up, I understand and please ignore my story lol

    My family home where I live belonged to my mother and father, with a 75/25 per cent share respectively, as tenants in common. The mortgage on the property is interest-only and due to mature in 3 months with an outstanding balance of 80K

    My father passed away a while back and he was listed the mortgage owner, now the bank will want their money or repossess the home and sell it at whatever price.

    Between me and my mom we have 80K in cash, we've been saving up in preparation because we love our community and home which is worth 500K.

    The caveat: The 25% share of the house which belonged to my father does not belong to anyone at the moment, and it cannot belong to anyone due to a special court order. The share is held in a "trust" agreement, that can only be released under specific conditions, where my mother ( 75% holder) dies or remarries .....or of course if the lender forces a sale).

    But there is a claim to to the 25% share of my father's by an ex partner (not his wife, and obviously not my mom) under a special act for dependents.

    If we paid the mortgage in cash, we'd essentially be paying for 75% of the property, there may be option to remortgage instead of paying cash.

    But the claim for the remaining 25% doesn't look like it will be solved anytime soon and we can't currently sell the house due to restrictions.

    Should we just pay the mortgage and hold on to the house with 25% not belonging to anyone? Rather than let the lender sell it below market value and split the net proceeds?
    Last edited by Adams18; 14-06-2019 at 2:11 PM.
Page 1
    • MovingForwards
    • By MovingForwards 14th Jun 19, 3:44 PM
    • 2,318 Posts
    • 2,749 Thanks
    MovingForwards
    • #2
    • 14th Jun 19, 3:44 PM
    • #2
    • 14th Jun 19, 3:44 PM
    Going to need a bit more info as normally a will or trust would say what happens to the 25% on the death of the person who has been entitled to live in the property. The 25% belongs to your dad's estate.

    Can you quote what the order states?

    Did your dad leave a will? If so, what does it say about who gets his estate?

    Did your parents divorce or were they still married?

    If divorced, when.

    The share of the 25% the ex / or partner of your late dad is going after is a separate issue. Did she live with him somewhere else? If they lived together whose property was it or was it rental?Was she financially dependent on him? Do they have kids?

    That is one for a lawyer to help you with.

    The IO mortgage needs to be paid off unless your mom wants to sell to get her 75% out and buy somewhere else. Which will be better than having a tangled mess of a repo, court costs and the 25% outstanding and still to be dealt with.

    You may struggle to get a mortgage due to the 25% and whatever wording is in the trust/order as well as your mom's age if you were looking at it as getting a mortgage in your mom's name only.
    • Adams18
    • By Adams18 14th Jun 19, 4:06 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    • #3
    • 14th Jun 19, 4:06 PM
    • #3
    • 14th Jun 19, 4:06 PM
    Going to need a bit more info as normally a will or trust would say what happens to the 25% on the death of the person who has been entitled to live in the property. The 25% belongs to your dad's estate.

    Can you quote what the order states?

    Did your dad leave a will? If so, what does it say about who gets his estate?

    Did your parents divorce or were they still married?

    If divorced, when.

    The share of the 25% the ex / or partner of your late dad is going after is a separate issue. Did she live with him somewhere else? If they lived together whose property was it or was it rental?Was she financially dependent on him? Do they have kids?

    That is one for a lawyer to help you with.

    The IO mortgage needs to be paid off unless your mom wants to sell to get her 75% out and buy somewhere else. Which will be better than having a tangled mess of a repo, court costs and the 25% outstanding and still to be dealt with.

    You may struggle to get a mortgage due to the 25% and whatever wording is in the trust/order as well as your mom's age if you were looking at it as getting a mortgage in your mom's name only.
    Originally posted by MovingForwards
    Thank you for your reply. He left no will, his partner was not financially dependent but cohabited in a rental for 2 years + and is on benefits and maybe over 60 yrs old.. no kids between them


    I used the term 'trust' loosely as essentially this describes the level of access to the 25%... in that it is in trust to the land where the property sits with a charge back to my father in the event that my mother dies or remarries...

    I assume if the property is sold by the lender then of course the 25% share is given to him in that event. It is not held in an actual trust per say by anyone such as the lender or property owners etc.

    Its an unusual court order never the less this is what was ordered so there can be no claim to.it as part of an estate belonging to my father until the triggering events come to pass. While he was alive he always tried to convince my mom and me to sell in order to get his share as that was the only way.. he probably didn't think we could pay the mortgage and it would get repossessed and divided up.

    This court order was made when they divorced 20 years ago.

    Property rights are divided between legal ownership and beneficial interest ownership. my mom has both, and father had both but we took recently his name off from legal ownership of property however the registry wont deal with his 25 per cent beneficial interest share till they see letters of administration proving who the inheritor is. they arent concerned with the court order maybe even not aware...


    I can't quite order now as dont have it can do it later.

    Ive lived in this property for 25 years ...and maintained it financially with my mom. father left house 20 years ago never paid a penny except for taking the mortgage out.

    I can try probate but completely lost as to what to declare in assets... if this magical 25 per cent doesnt form part of estate due to court order. Think maybe bank wont talk to me without letters of administration.
    Last edited by Adams18; 14-06-2019 at 4:18 PM.
    • tacpot12
    • By tacpot12 14th Jun 19, 4:07 PM
    • 2,899 Posts
    • 2,623 Thanks
    tacpot12
    • #4
    • 14th Jun 19, 4:07 PM
    • #4
    • 14th Jun 19, 4:07 PM
    It seems to me that if you clear the mortgage yourselves, before the claim on the 25% is resolved, you might end up having give the claimant some or all of 25% of the value of the house.

    Best advice might be to sell the house, put 25% on deposit somewhere and buy another house with the remainder of the proceeds plus the 80k.

    Alternatively, if can get a mortgage for 125k you can settle the claim for the 25% with this, and use the 80k to clear the existing mortgage. If the claimed portion ends up being less than 25%, you can use the remaining money to repay a portion of the mortgage.
    The comments I post are my personal opinion. While I try to check everything is correct before posting, I can and do make mistakes, so always check official information sources before relying on my posts.
    • Adams18
    • By Adams18 14th Jun 19, 4:25 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    • #5
    • 14th Jun 19, 4:25 PM
    • #5
    • 14th Jun 19, 4:25 PM
    It seems to me that if you clear the mortgage yourselves, before the claim on the 25% is resolved, you might end up having give the claimant some or all of 25% of the value of the house.

    Best advice might be to sell the house, put 25% on deposit somewhere and buy another house with the remainder of the proceeds plus the 80k.

    Alternatively, if can get a mortgage for 125k you can settle the claim for the 25% with this, and use the 80k to clear the existing mortgage. If the claimed portion ends up being less than 25%, you can use the remaining money to repay a portion of the mortgage.
    Originally posted by tacpot12

    Thank you for your reply, unfortunately we don't have the ability to sell at this moment, due to restrictions on the deeds/ land registry records.

    It's the bank who can repossess and sell at whatever price they deem reasonable to get their money, so we would all lose money at that point. Either we pay, hold on to the property and see what the claimant tries to achieve, she is waiting for me to initiate probate in order to put forward her claim.



    As for paying the claimant via a mortgage, I or my mother would certainly not consider this an option, of course it would be upto a court to decide... but going to court is exremely expensive and not as easy as the movies make it out to be. As it stands, we wouldn't have to pay her anything so long as the house isn't sold, mother does not remarry, is alive etc.

    It only becomes chargeable to the estate once the above events get triggered. I think If I do probate, somehow, I may be able to lift the restriction of selling the house, but time is ticking, probate takes time, and I've tried solving this case for two years now.

    Neither us or the claimant can afford court fees, and it would not be worth financially.


    I've put all my money into this house over the years, with payments and maintenance.. I don't see the need to have to pay or owe anyone anything such as the claimant. But that's a personal issue.
    Last edited by Adams18; 14-06-2019 at 4:39 PM.
    • MovingForwards
    • By MovingForwards 15th Jun 19, 8:33 AM
    • 2,318 Posts
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    MovingForwards
    • #6
    • 15th Jun 19, 8:33 AM
    • #6
    • 15th Jun 19, 8:33 AM
    Ok, thanks for providing a bit more info.

    Your dad died intestate so look up the rules of intestacy to see who is entitled to his estate.

    Has your dad's partner made a claim on the estate or has she merely threatened to?

    You still need to quote the court order details.

    What is quoted on the land registry about the property and selling it?

    Not sure why the solicitors you have seen have not been able to untangle this, but you obviously have not been to see a good one!
    • Adams18
    • By Adams18 15th Jun 19, 1:55 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    • #7
    • 15th Jun 19, 1:55 PM
    • #7
    • 15th Jun 19, 1:55 PM
    Ok, thanks for providing a bit more info.

    Your dad died intestate so look up the rules of intestacy to see who is entitled to his estate.

    Has your dad's partner made a claim on the estate or has she merely threatened to?

    You still need to quote the court order details.

    What is quoted on the land registry about the property and selling it?

    Not sure why the solicitors you have seen have not been able to untangle this, but you obviously have not been to see a good one!
    Originally posted by MovingForwards
    Many thanks for your reply

    I've learnt the hard and expensive way that finding a good lawyer is like getting struck by lightening. Just to say hi to a lawyer, or pick up the phone costs money. Imagine how much it costs to "try out" a dozen or so.

    I've also created this thread on topic where I explain in detail: https://forums.moneysavingexpert.com/showthread.php?p=75928795#post75928795

    I've spent thousands of hours researching probate, contentious probate and intestacy laws.

    I've been back and forth with the claimants solicitors for two years regarding who is entitled to the estate, however upon more careful examination of the court orders established during divorce proceeding between my mother and father, the 25% share he owned can only be claimed in the event that my mother dies or remarries, or the house is sold by the bank

    So fathers estated gets a chargeback of 25% in the above triggering events, as the events precede the chargeback, the debt is first cleared from the property, and then the net proceeds are are split 25/75 and 25 goes to fathers estate.

    There is a restriction on the property, a standard one for tenants in common, preventing sale of the house, which should be removed if I do probate as inform land registry that I am the successor to the father/his 25%. I would of course still be in the same position as him, incumbent upon the court order/triggering events.
    • cannugec5
    • By cannugec5 15th Jun 19, 3:00 PM
    • 37 Posts
    • 26 Thanks
    cannugec5
    • #8
    • 15th Jun 19, 3:00 PM
    • #8
    • 15th Jun 19, 3:00 PM
    I am intrigued by this thread.

    I am assuming this is English law you are talking about - different rules apply in Scotland and Wales.

    I know nothing about probate etc, but a very quick look at the gov.uk website is very clear that without a will an unmarried partner has no right to inherit anything. The surviving child(ren) of the deceased are entitled to the estate.

    Therefore I cannot understand why it has taken solicitors 2 years to determine that this potential claimant has no valid claim whatsoever.

    As I see, the OP's mother keeps her 75% share of the house and the OP and any siblings get the 25%.

    Many thousands of hours of research into probate law, clearly have not paid off if you are still seeking the answer on a forum such as this.

    Personally I would apply for probate and get this sorted before the bank makes the decision for you and forces a sale.
    • xylophone
    • By xylophone 15th Jun 19, 3:00 PM
    • 31,368 Posts
    • 19,448 Thanks
    xylophone
    • #9
    • 15th Jun 19, 3:00 PM
    • #9
    • 15th Jun 19, 3:00 PM
    The unmarried partner cannot claim under the rules of intestacy.

    You also state that she was not financially dependent on your father.


    Under these circumstances I cannot see that she has much (if any) claim to provision from your father's estate?



    You are the only child of your intestate father?

    You are therefore the sole inheritor of his estate/any rights that his estate held?

    Therefore you are in exactly the same position as your father in respect of his share of the house?

    Once you pay off the mortgage, in effect the 25% share of the house is held by you in trust for your mother until she dies when it reverts to you?

    Did your father have any other assets at the time of his death?

    What on earth would be the point of allowing the bank to repossess the property?
    • Adams18
    • By Adams18 15th Jun 19, 3:13 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    I am intrigued by this thread.

    I am assuming this is English law you are talking about - different rules apply in Scotland and Wales.

    I know nothing about probate etc, but a very quick look at the gov.uk website is very clear that without a will an unmarried partner has no right to inherit anything. The surviving child(ren) of the deceased are entitled to the estate.

    Therefore I cannot understand why it has taken solicitors 2 years to determine that this potential claimant has no valid claim whatsoever.

    As I see, the OP's mother keeps her 75% share of the house and the OP and any siblings get the 25%.

    Many thousands of hours of research into probate law, clearly have not paid off if you are still seeking the answer on a forum such as this.

    Personally I would apply for probate and get this sorted before the bank makes the decision for you and forces a sale.
    Originally posted by cannugec5
    Yes I thought it would be that simple two years ago. Then I learn of the 1975 Act for dependents giving them a possible right (determined in a court of law or negotiated by the parties) to the estate of the deceased. I then read some intriguing cases one how many dependents acts actually won a case and took a lot.

    He died with no will and intestate. But she is making a strong case under 1975 act which makes provisions for a non-wife to inherit if she was being maintained by the deceased or cohabited for upto 2 years prior to death.

    Who knows what a court of law would rule? In english law... but it costs 20,000 to get started on proceedings.
    • MovingForwards
    • By MovingForwards 15th Jun 19, 3:18 PM
    • 2,318 Posts
    • 2,749 Thanks
    MovingForwards
    It's a lot easier if everything is in one post so we can see the additional information

    Perhaps a mod could merge them for you?

    Go for probate as the caveat has been lifted.

    As you will be the executor of your dad's estate nothing stopping you from applying for probate.

    You will need a property valuation from when your dad died, a RICS registered valuer can do that for you and provide a nice report to back up his reasons. This will mean any claim the partner tries to make will be against 25% of the value when he died, not the present value. A decent contentious probate lawyer will find this easy to resolve for you.

    I am honestly surprised none of the lawyers you have dealt with over the years have been able to unravel this, advise you accordingly and get it wrapped up! Yes, contentious probate can drag on, costs can get a bit silly when people are being petty, but it all gets resolved when cold aged facts and figures are put in front of the person making the claim against the estate, especially when they realise there isn't much left of the 25% due to the legal costs eating it up!

    Nothing stopping you sorting the house out, having the 75% with your mom and the other 25% in trust as an executor until the partner is dealt with.
    • Adams18
    • By Adams18 15th Jun 19, 3:19 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    The unmarried partner cannot claim under the rules of intestacy.

    You also state that she was not financially dependent on your father.


    Under these circumstances I cannot see that she has much (if any) claim to provision from your father's estate?



    You are the only child of your intestate father?

    You are therefore the sole inheritor of his estate/any rights that his estate held?

    Therefore you are in exactly the same position as your father in respect of his share of the house?

    Once you pay off the mortgage, in effect the 25% share of the house is held by you in trust for your mother until she dies when it reverts to you?

    Did your father have any other assets at the time of his death?

    What on earth would be the point of allowing the bank to repossess the property?
    Originally posted by xylophone

    The unmarried partner cannot claim under the rules of intestacy.

    Perfectly right, but we have the 1975 act for dependents, where partners that werent officially registered as wife and husband, or a civil partnership can make a claim if they coahabited with the deceased for 2 years prior to the death, or they were being financially maintained and no provisions were made for them following death. And the deceased left no will.


    Once you pay off the mortgage, in effect the 25% share of the house is held by you in trust for your mother until she dies when it reverts to you?

    Correct, I would be in no better position than the deceased if I did probate and paid of the mortgage with respect to the 25% which is held under trust to the land until my mother remarries or passes away.

    What on earth would be the point of allowing the bank to repossess the property

    The unbearable thought of having dropped 80,0000 pounds of hard earned savings, plus owing the claimant a possible 25% nominal value of the hosue further down the line.
    • Adams18
    • By Adams18 15th Jun 19, 3:24 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    It's a lot easier if everything is in one post so we can see the additional information

    Perhaps a mod could merge them for you?

    Go for probate as the caveat has been lifted.

    As you will be the executor of your dad's estate nothing stopping you from applying for probate.

    You will need a property valuation from when your dad died, a RICS registered valuer can do that for you and provide a nice report to back up his reasons. This will mean any claim the partner tries to make will be against 25% of the value when he died, not the present value. A decent contentious probate lawyer will find this easy to resolve for you.

    I am honestly surprised none of the lawyers you have dealt with over the years have been able to unravel this, advise you accordingly and get it wrapped up! Yes, contentious probate can drag on, costs can get a bit silly when people are being petty, but it all gets resolved when cold aged facts and figures are put in front of the person making the claim against the estate, especially when they realise there isn't much left of the 25% due to the legal costs eating it up!

    Nothing stopping you sorting the house out, having the 75% with your mom and the other 25% in trust as an executor until the partner is dealt with.
    Originally posted by MovingForwards

    You are probably right on mergin, but there are so many angles and aspect to my case I need legal, financial, accounting advise lol it's just a mess. Understanding it all.

    I hope you are right, my fear has stemmed for what the claimaint could actually win via 1975 act for dependents. We knew she would be in a weak position not being the actual wife, but she did live with him for 15 years and we know not what a court could rule if it came down to that.

    I probably could have done probate ages ago, but it took us time to determine if she was actually married or not because the first letter we received from her was "I am the wife of the deceased, I understand he had 25% in your property, how do you intend to settle this for me"

    Thanks for advice or RICS, I had it valued a while back by a estate agent. When applying for probate what do I list down? Just 25% held on trust of said property?
    Last edited by Adams18; 15-06-2019 at 3:27 PM.
    • cannugec5
    • By cannugec5 15th Jun 19, 3:35 PM
    • 37 Posts
    • 26 Thanks
    cannugec5
    So, previously you stated that they cohabited for 2 years+, and now it is 15 years. There is a lot of difference.

    Either way, if she is legally entitled to his share, why are you preventing this from happening? IF she is entitled she- or her estate- will get it eventually.

    I still think applying for probate is the thing to do. What does your mother think about all this?
    • Adams18
    • By Adams18 15th Jun 19, 3:40 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    So, previously you stated that they cohabited for 2 years+, and now it is 15 years. There is a lot of difference.

    Either way, if she is legally entitled to his share, why are you preventing this from happening? IF she is entitled she- or her estate- will get it eventually.

    I still think applying for probate is the thing to do. What does your mother think about all this?
    Originally posted by cannugec5
    Two years is the minimum as stated in the 1975 act. They've been together over 15 years ergo 2+ (over the minimum)

    The way it works is a back and forth between her solicitor and my solicitor to negotiate. I don't see why she is entitled to anything from my perspective. I maintained this house with my mother for 25 years, father never paid a penny.

    I put all my life and blood into this house, as did my mom, and nobody helped us, and he never paid a thing towards anything in my life.

    This is our home. What does my mother think? She hasnt slept properly in two years, her entire life is in the place, its near london, so good luck getting another place nearby.

    She will never want to leave this house, but at this stage she is not a player in the court case, as its my father who died, she was divorced to him, and I am the one who is being pursued by the claimaint (ex partner)

    If my dad really wanted to make provisions for this claimaint, he would have married her (his been married twice before) and he would have left a will. But he didnt.
    • MovingForwards
    • By MovingForwards 15th Jun 19, 3:55 PM
    • 2,318 Posts
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    MovingForwards
    I haven't stated the obvious but for a 15 year co-hab relationship she would have a claim, but I think you know this already. It's a case of trying to find a figure she will go away for

    Or, let her submit her claim and see what a judge thinks, remember it's based on 25% value when he died, not current value.

    Go for probate and get it.

    Pay the outstanding mortgage off.

    Worst case is the partner wins her case and you then have to take a small mortgage out on the property to pay her.

    You could always take a small mortgage out for the 25% as it was valued on death and put the money in the bank, pending the outcome of her claim.

    When probate is granted currently the 25% is yours and any siblings as the partner has not had her claim awarded/quantified. It means your mom will own 75% of the property, you will own 25%.

    I appreciate you do not want her to have a penny, but sadly if she is on benefits/pension she isn't financially independent unless she has a huge pension.

    Yes, your dad should have drawn up a will, he didn't, same as many don't, but this is the cards you have to deal with.

    If it's causing this much stress to your mom get it resolved sooner than later.
    • Adams18
    • By Adams18 15th Jun 19, 4:09 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    I thank everyone for their replies and input, in the effort of consolidating two threads, similar topic please post here: https://forums.moneysavingexpert.com/showthread.php?t=6013727&page=3#topofpage
    • Adams18
    • By Adams18 15th Jun 19, 4:26 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    I haven't stated the obvious but for a 15 year co-hab relationship she would have a claim, but I think you know this already. It's a case of trying to find a figure she will go away for

    Or, let her submit her claim and see what a judge thinks, remember it's based on 25% value when he died, not current value.

    Go for probate and get it.

    Pay the outstanding mortgage off.

    Worst case is the partner wins her case and you then have to take a small mortgage out on the property to pay her.

    You could always take a small mortgage out for the 25% as it was valued on death and put the money in the bank, pending the outcome of her claim.

    When probate is granted currently the 25% is yours and any siblings as the partner has not had her claim awarded/quantified. It means your mom will own 75% of the property, you will own 25%.

    I appreciate you do not want her to have a penny, but sadly if she is on benefits/pension she isn't financially independent unless she has a huge pension.

    Yes, your dad should have drawn up a will, he didn't, same as many don't, but this is the cards you have to deal with.

    If it's causing this much stress to your mom get it resolved sooner than later.
    Originally posted by MovingForwards
    Great points, you've summed up the thoughts I've dwelt upon for two years.

    I haven't stated the obvious but for a 15 year co-hab relationship she would have a claim, but I think you know this already. It's a case of trying to find a figure she will go away for

    Yeah pretty much, and who's to say what she should or would get? Without going to court, it's a back and forth, back and forth drama between her solicitor and my solicitor... no one giving up ground. Only a judge can give a clear cut order on what happens.

    In hindsight I should have done probate ages ago, but I had to determine if she really was the wife as she claims or not. I had the house valued 6 months after he passed away.

    So then if pay mortgage 80k, and potentially have to pay her out 125K if she wins all of it.... then that's 205K on a 500K property. Its in greater london, so hard pressed to get anything better if we left the property.

    I appreciate you do not want her to have a penny, but sadly if she is on benefits/pension she isn't financially independent unless she has a huge pension.


    She earns 1500+ a month or so from benefits from what shes told us.

    I appreciate that, but my father is the one who didn't make any financial provisions, or marry her, and he never supported me either. I invested so much money into this property in maintenance/ and mortgage payments, and then I'll be paying the mortgage too only for her to just come along and take 25%. This not justice.

    I'll hopefully resolve this soon, Im pressing my solicitor to confirm caveat removal and Ill get probate done myself. Most valuable lesson learned here? Always have a will drawn up. I know many don't now I advise everyone to do one.

    And maybe avoid marriage and divorces

    Thank you for your meaningful response, greatly appreciated.
    • JGB1955
    • By JGB1955 15th Jun 19, 4:38 PM
    • 351 Posts
    • 395 Thanks
    JGB1955
    I guess I'm missing something here. Just musing about this....if the house was valued at 500K at death, the 25% share is 125K but with an offset liability of 80K...leaving just a potential 45K for the co-habitee?
    • Adams18
    • By Adams18 15th Jun 19, 4:41 PM
    • 103 Posts
    • 18 Thanks
    Adams18
    I guess I'm missing something here. Just musing about this....if the house was valued at 500K at death, the 25% share is 125K but with an offset liability of 80K...leaving just a potential 45K for the co-habitee?
    Originally posted by JGB1955

    Well thats what I thought initially, but due to a court order in place, the mortgage is redemeed first in the event of a sale, and then the net proceeds are split, where 25% goes to the estate.

    500-80

    =420/4

    =105

    Or assuming I pay the mortgage, then no debt and that gives us 125K on market value
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