House currently under a joint name mortgage.That's pretty much the question I have; mortgage with a local branch of a national (USBank) bank. I've inquired but they insisted on putting my answer in a "secure password coded" reply and I haven't been able to get it (CISCO); VERY ANNOYING.
To do so you'll need to go through an amendment or perhaps even a new mortgage process with the lender, which will determine whether or not you alone have sufficient assets to be financially responsible for the mortgage.
Given that your husband has dementia, I hope you haven't already executed a quit claim deed from the two of you to just yourself?
Did you go in person to speak with one of the loan officers at the branch where the mortgage was initiated? That's what I would do; they know to initiate action to address your request. But think twice about this, especially if you're not working and don't have any income other than SS.
And I doubt any court would find jurisdiction in becoming involved in a situation like this. What would be the cause of action?
If asset protection from your husband's creditors is your goal, that's something you might want to consider exploring with an estate planning attorney. Was there any transfer of title for the property? Same with other financial assets? What assets did you hold jointly that are still titled jointly?
Are you Personal Rep of his estate, and are you notifying creditors of his death? Is the estate being probated, or did he have a trust? If the latter, I would see the attorney who prepared the trust. Asset protection can be a tricky business.
But transferring specifically to avoid creditors could have implications so I would approach this carefully. I'm not really sure the mortgage is going to provide any protection on this level at all.
You'll need to compare the current market value of the house, less the mortgage, and determine roughly the amount of equity. This would be what might be attractive to a creditor, because it would ONLY be able to attach the house as a secondary creditor.
The mortgagee (lender) presumably holds a first mortgage. Any creditor that liened the house would be subordinate, and even though it could file a lien, it would still be in second place to the mortgage lender.
If the house sold for close to market value, there would be little for the subordinate creditor to recover from the house and property.
I suspect there's more going on with the creditor issue though.
Keep in mind that you will need to have a value placed on the house for probate. It can be the tax assessor value of the property. But if that is not accurate, then you can get an appraisal done. Usually what works best is to get an inspection done, maybe even an engineering report, and then those are given to an appraiser. Everbody must be registered or certified or whatever is done in your state to show expertise. The appraisers report is a legal document and gives you the figure for value of the house to enter as an asset of the estate. If the debts against the estate exceed the value of the estate or you have claims against the estate that are required to be paid in a specific order then some debts will just not be paid and are essentially discharged by probate court. For unsecured creditors, those claims against the estate often don't get paid if the assets are low or modest value.