Q: Several years before my mother passed away in 2010, she added the names of all her six kids to the deed. The oldest sibling is executor and I am secondary. The first loan is in (Mom's) name only. She is on the second deed as well as myself. One sibling lives in the house and would like to refinance both loans but her name is on neither loan. Does she need permission from all the others to refinance, or can either the other sibling or myself give permission if needed? The bank can't seem to give the same answer. Also, what is the difference between a "trustee" and "executor"? And is being the executor the same as having power of attorney for someone? Thank you. --Cora, El Dorado Hills
A: It sounds like your mother's house was not held in a trust and there was no probate proceeding after your mother's death. If that is the case, then your mother's name is probably still on the deed. If so, I recommend that you consult with a real estate lawyer and/or a title/escrow company to have your mother's name removed from the title.
Whether you all hold title as joint tenants or tenants-in-common will determine what steps are needed to remove your mother's name from the deed.
As part of cleaning up the title, you and your siblings also need to decide how you should hold title going forward. Whether you hold title as joint tenants or tenants-in-common determines who inherits your interest when each of you dies.
Regardless of whether you refinance or not, you should take both steps (removing your mother's name and deciding how you and your siblings hold the title), or the situation will become even more complicated when one of the siblings dies.
As to refinancing, the lender will require that all co-owners be signers on the loan, which means that all siblings will have to agree to refinance the property. Rates are probably lower now than when the existing loans were obtained, so that is incentive to refinance. However, it may be that one or more of the siblings has recently refinanced their own house and will not qualify to be on another loan.
If you continue having trouble getting an answer when you speak to the lender, ask to speak to a supervisor and explain the situation.
When asked what a "trustee" does, I generally think of the "trustee" who manages the assets held in a trust; in contrast to the "executor" who handles any property that was owned by a decedent outside of a trust and is in charge of the decedent's estate as it goes through probate. However, you may be seeing the term "trustee" on one of the deeds of trust on your mother's property. In that context, the "trustee" is the third party who makes sure that the terms of the loan are followed by the borrower and lender.
An "attorney-in-fact" is the person who is authorized to take action under a power of attorney document. The attorney-in-fact is able to exercise rights that another person (the "principal") has during his or her lifetime, such as managing assets and making decisions about financial matters, as authorized in the power of attorney document.
An attorney-in-fact can only act during the principal's lifetime. After the principal's death, his or her affairs are handled by the executor or trustee.
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