(Names changed for privacy; photo not the actual clients.)
Having clear title to one’s home is often crucial to saving it, whether the threat is from potential foreclosure or a natural disaster.
That’s because without clear title, the homeowner cannot negotiate with lenders or access federal aid, including disaster relief from FEMA or housing assistance through the U.S. Department of Housing and Urban Development (HUD).
Jacksonville Area Legal Aid helps families avoid a potential foreclosure and access federal aid after a loved one passes away by helping them clear title through probate.
“Probate is a complex and confusing process for many families,” JALA President and CEO Jim Kowalski said. “But it is a crucial step in ensuring that a deceased person’s property is properly transferred to their heirs. When families don’t understand the importance of probate, they can put themselves at risk of losing their homes.”
Often, the heirs of the person on the title and mortgage don’t realize the need for probate until it’s too late and the foreclosure default process has started. After the owner passes away, if the deed does not transfer ownership, the family will often continue making the payments without knowing a step has been missed. Then, once a problem arises, such as a missed payment or a tax issue, the mortgage servicer will refuse to even communicate with the family members living in the house. A foreclosure is just a few steps away.
“In those cases, we have to work to hold off the foreclosure while the probate process is underway,” Kowalski said. “These issues have had a significant impact on certain communities: Hispanic populations in the Southwest; Indigenous communities in the West; throughout Appalachia; but especially here in the South with African American families, where the generational wealth represented by homeownership can be lost very quickly.”
Foreclosure can have a devastating impact on families, not only causing them to lose their homes but also potentially damaging their credit for years to come.
Carol Miller, JALA’s attorney for community economic development, said there are other potential pitfalls of not going through probate.
“There could be a penalty for not returning that annual postcard from the Property Appraiser when a homeowner dies,” she said. “We want families to avoid a tax lien, and JALA can help heirs living in the home qualify for their own homestead exemption.”
Legal aid organizations work to prevent adverse outcomes by providing critical information and support to families through the probate process.
Through lawyers like Miller, JALA provides families with legal representation, advice and counseling, assistance in navigating the probate process, and help with mortgage modifications. Its staff attorneys and housing counselors also work with other organizations and agencies that provide financial assistance and other support to families in need.
In a recent case, JALA filed a testate probate case for the deceased mother of a client, a disabled Marine veteran, who was living in his mother’s house. The original will had been lost. The client had to notify all potential heirs to get their consent to admit a copy of the lost will. JALA found two heirs and obtained consents but was unable to locate the other two heirs, despite a diligent search.
Ultimately, the Court decided to admit the will and transferred the property to the client so he could modify his mother’s mortgage and stay in the house. JALA attorney Michael Pelkowski also represented him in the mortgage modification.
“JALA’s unique focus is the intersection of probate, litigation, and racial equity. At a time when families are already grieving the loss of a loved one, the last thing they should have to worry about is losing their home,” Kowalski said. “We are committed to helping families through this difficult time and ensuring that they receive the support and resources they need to keep their homes.”
If you or someone you know is facing foreclosure or needs help with probate after the loss of a loved one, please contact JALA for assistance at (904) 356-8371 or apply online at www.jaxlegalaid.org/apply/
About Jacksonville Area Legal Aid
Jacksonville Area Legal Aid is a nonprofit law firm focused on delivering economic, social, and housing justice to low-income and at-risk individuals and families on the First Coast.
If you are an attorney wanting to volunteer with probate and heirs property issues, contact JALA Pro Bono Director Aaron Irving, at (904) 356-8371, Ext. 363, or Aaron.Irving@jaxlegalaid.org.
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