Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“James and Mary own 70+ acres in Wyoming. Son notarizes note for $75,000 for this property (that contains 4 mining claims.) $75,000 was to be paid to James and Mary at the rate of $200 a month until total is paid. Little or nothing has been paid against this note for this property. Note was signed and notarized 10 Apr 1996. Note is signed by son and notarized, but not recorded anywhere.
There is a quitclaim deed made out by James and Mary quitclaiming said property from them to them and adding the son. Survivorship rights were also added. This document is dated 13 Jun 1995.
James died in 2003 and Mary died in March this year. I understand that the son gets the property, but does he still owe the $75,000 note to James and Marys estate? Can a lien be placed against the property by James and Marys power of attorney in order to prevent sale of property until this note is fulfilled?”Oddly enough, I don’t think you’ve provided enough information. Debts do not just go away because someone has died. However, a promissory note is just evidence of a debt (and the details of the agreement to repay). In and of itself, it doesn’t really have anything to do with any specific piece of property.
Question: Sometimes, however, a note is secured by a piece of property, meaning that the creditor has priority over other creditors to collect against that property. In that case, the note will be accompanied by a security device, in most states referred to as a mortgage or a deed of trust.If you’ve got a mortgage or a deed of trust, you can foreclose it by selling the property. This involves a fairly complex and technical process, and is best left to professional foreclosure companies (who you can hire for this purpose).
If you don’t have a mortgage or a deed of trust, normally you need to get a court judgment before you can put a lien on real estate. There may be some exceptions in your state, but that’s both unusual and a far too complex topic to deal with without local legal help. However, the most likely answer is that you need to get a judgment first-and that means that there’s little you can do to prevent the son from selling the property in the meantime.Also, while they were married, the idea that husband and wife are one person has gone the way of the buggy whip. James and Mary have individual estates, not one combined estate. Whether the son owes money to James’s estate, Mary’s, or some combination of the two, will depend on the terms of their wills (if any) or the local intestacy laws.
Answer:
Finally, one last thing to consider: While debts do not automatically go away when someone dies, it is possible that the parents may have lent this money in anticipation of the inheritance to the son (possibly but not necessarily including the real estate he was put on title to). For that determination, you’ll have to consult with a probate attorney.
