Q&A - Liability for mortgage after husband's death

01/05/2011

Q:  My late husband and I owned our family home jointly. For tax reasons, my husband was advised to leave his share in the property directly to our four children, all of whom have "flown the nest". Although they have all promised me that the house is mine to live in for as long as I wish, why am I the only one paying the mortgage each month? The children have not heard anything from the building society and it seems unfair that their father's share has gone to them but I am left paying for it.

A:  The reason why you are still paying the whole of the mortgage is that you and your husband were "jointly and severally liable" under the mortgage - this means that the lender could look to each of you to pay the whole of the mortgage. Now that your husband is no longer alive, the lender does not have to involve your children because there is still one original borrower under the mortgage - you!

If you cannot afford the mortgage, the lender may be prepared to accept extra borrowers. However, if your children have homes and mortgages of their own they may not be able to sign any additional mortgage without the agreement of their existing mortgage lenders. A Solicitor could advise them on the terms of their current mortgages and advise you and them of a range of options which you could all consider in order to keep the benefit of your late husband's tax-planning whilst planning actively for the future in the new circumstances of your family.

Also, are you sure there was no life assurance or other policy to pay off the mortgage on your husband's death? Your Solicitor can check the terms of the original mortgage offer for you and find out whether any mortgage protection was included.

Richard Lloyd

Richard Lloyd

Partner

Our Senior Partner and Head of the Property team in Oswestry