Kay Brooks

Ask the Experts: No easy answers on assigning burial plots, refinancing Mom's house

Published: Wednesday, Dec. 19, 2012 - 12:00 am | Page 7B

How do six kids refinance Mom's house? Who gets the burial plot after a divorce?

This week, "Ask the Experts" tackles those two very different financial topics. The answers are from Sacramento estate planning attorney Kay Brooks, one of Sacbee.com's online contributors.

My husband and I bought two burial plots when we married. Later we got divorced, and he remarried. The plot is listed in both our names but did not come up in our divorce settlement. My ex died two years ago and was cremated. Am I entitled to the other burial plot, or does his new wife get it? The plot is listed in our names.

Typically burial plots are held in joint tenancy. Under California law, a person's joint tenancy property passes automatically to the other joint tenant upon his or her death. However, the court retains continuing jurisdiction over community property assets that were not previously adjudicated in a divorce. This includes property that was unintentionally omitted from the divorce agreement.

You may need to go to court to determine ownership of your burial plots. I recommend contacting the divorce lawyer who represented you for advice on how to properly address the issue.

Several years before my mother passed away in 2010, she added her six kids to the deed on her house. 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 not on them. Does she need permission from all of us to refinance? The bank can't seem to give us an answer. Also, what is the difference between a "trustee" and "executor"? Is being the executor the same as having power of attorney?

It sounds like your mother's house was not held in a trust and there was no probate proceeding after her 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.

The steps involved depend on whether you and your siblings are listed as "joint tenants" or "tenants-in-common."

Regardless of whether you refinance, you should remove your mother's name from the deed and decide how you and your siblings hold title going forward. How the six of you hold title – either as "joint tenants" or "tenants-in-common" – will determine who inherits your interest when each of you dies. If you don't address this, 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 of you must agree to refinance.

However, a sibling who has recently refinanced his or her house may not qualify to be on another loan.

If you continue having trouble getting a clear answer from the lender, ask to speak to a supervisor and explain the situation.

As far as the difference between trustees and executors: Think of the "trustee" as managing the assets held in a trust; an "executor" is named in a will and primarily acts when someone's estate goes through probate.

You may be seeing the term "trustee" on a deed of trust on your mother's home. In that case, the "trustee" is the third party who makes sure that the loan terms are followed by the borrower and lender.

An "attorney-in-fact" is a person authorized under a "power-of-attorney" document to act on your behalf while you are living. In the event you become ill or incapacitated, they can manage your assets and make decisions about financial matters.

– Compiled by Claudia Buck

© Copyright The Sacramento Bee. All rights reserved.

Sacramento Bee Job listing powered by Careerbuilder.com
Quick Job Search
Sacramento Bee Jobs »
Used Cars
Dealer and private-party ads


Price Range:
Search within:
miles of ZIP

Advanced Search | 1982 & Older