What if the cosigner of my mortgage dies?
Depends whether it was a co-owner of the home
Q: My dad cosigned on the mortgage on my home. We split all the bills. If my dad passes away, can my brother inherit his part of the property? He does not live with us, but I am afraid he will try to take over my dad’s portion of our house.
— Silvia
A: You did not mention whether you co-owned your home with your father or if he just cosigned your mortgage loan and helps you with your bills.
That missing piece of information will make a big difference in your situation.
When someone cosigns a loan, they agree to be responsible for the repayment of money they did not get the benefit of. The cosigner acts as a “surety” on behalf of the borrower. If the borrower cannot pay the debt, the lender can collect the money from the surety.
Since your father cosigned the loan you used to buy your house, your mortgage lender can foreclose your home and seek repayment from your father if you stop making payments.
However, despite the responsibility he voluntarily took on, your father has no rights in the property unless his name is also on the deed.
While it is nice that he helped you with your loan, he is not in an enviable position.
If you co-own the property with your father, you will need to review the deed’s exact wording to determine what will happen if your father passes away. If the home is owned as “joint tenants with right of survivorship” and one of the co-owners passes away, the remaining owners get their share.
If the deed does not contain those words, your home would be held as “tenants in common” with your dad, and his share would pass to his legal heirs.
To determine who his legal heirs are, his will, if he has one, and who survives him, will determine who gets his share.
If everyone is on the same page on this issue, you should all see an experienced estate planner and square everything away for the future.
Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show “Legal News and Review.” He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.