Your aunt may be tempted to proceed without an attorney because of the cost, but believe me... a good attorney is worth the money. Just make sure they're experienced in debtor-creditor and/or probate and estate law. The following link is for the national association and should be able to help you find an attorney and provide nominal legal information.
Do you have any of the original paperwork he signed at the closing??? What does it say???
Unless they were not married at the time he purchased the asset, she HAD to sign paperwork acknowledging the marriage at closing even if she's not on the loan. The title company would require it. The lender knows about her if they were married when he bought the property. If they were not married at the time of the closing, got married later and he then quit claimed the deed to her there are larger issues.
Is there a will? Most properties (even if it's only through probate statutes) and loan arrangements take into consideration the passing of assets at the time of death and how they are to be handled. Again, where is the closing paperwork? What does it say?
If you can't find it, try to call the title company who closed the transaction and ask for their copies of the papers - if you can't find the title company, go down to the property appraiserâ€™s office or the clerk of the court and look up property and the documents - the title company name is on the title insurance policy. Find them, get a copy of the loan paperwork. If you have to you can try to resource the notary who signed the papers and get them to help you get some of the papers. The lender will send you copies if you tell them you can't find yours but they will charge you - by the page.
If the deed and mortgage are in one person's name and just before he dies he moves the ownership into another person's name who is not on the loan... you can see why a lender would have an issue with this. Will it be a problem? Possibly not but you must have the paperwork to know for sure.
Before you contact the lender or an attorney collect the loan paperwork and title paperwork on his purchase first. A probate attorney can only do so much, they have to know what was agreed to by the deceased and what clauses go into affect at the time of death and the marital status of the deceased at the time they took ownership of the property.
Don't expect to find any clauses in the lending paperwork that allow you to transfer the property to anyone you want with blanket agreements to accept them as a borrower. But there may be clauses that actually require the decendants to take over the loan obligations on the property and if this is the case, then you could make a name change quickly, painlessly and since (I'm assuming) you've been making the payments on the property all this time, this could be a seamless process for you. However, you must know what was agreed to by your uncle and what the lender says happens to the debt if he passes. There could be a loan call paragraph there and it could create an issues for you. You just need to know.
Once you've collected this paperwork (and do it quickly, 8 months have already passed) then schedule the meeting with the attorney and find out where your risks are. Then let the attorney advise you of the next step.
Hope this helps, good luck!
You could also call the bank directly and see what they say. They will probably tell you that the names on the loan can not be changed unless they run a credit check and even at that point they will probably want your Aunt to get a new loan on the house at todays going rate. That could be good or bad depending on what the rate on the loan is currently.
I think Aileen gave you the best answer (and advice) to seek the services of a professional real estate attorney. There are different ways that warranty and security deeds can be drawn up as well as the fact that each state, county or local municipality may have different guidelines.
It may not be in your aunt's best interest to have the mortgage placed in her name. Based upon my understanding of the laws in Georgia, as long as she continues to pay the mortgage, she can stay in the home while not legally being accountable to repay any outstanding debt since only the deceased uncle's name is on the loan. Catch 22 is if she defaults on the loan, the mortgage company would likely begin steps to foreclose. I'm confident that each lender has different provisions in their loan documents; therefore, requirements will vary.
A home is too valuable of an asset to take chances with when buying, selling or faced with legal challenges. Help your aunt find/hire a professional attorney. Best wishes for a successful resolution of the matter. --- Ted Shoop