Why an inherited house might not be a probate asset, and whether you can make mortgage payments to stop foreclosure in Maryland

Short answer: A home will not be a probate asset in Maryland if it passes automatically at death (for example, by right of survivorship, by trust, or by a valid beneficiary transfer). If you already own the house as a nonprobate beneficiary or joint owner, you generally may make mortgage payments to avoid foreclosure. If the house is still owned by the decedent’s probate estate, only the personal representative (administrator or executor) normally has authority to act for the estate — but anyone can make voluntary payments to the lender to try to avoid foreclosure. In all cases, contact the mortgage lender immediately and get legal advice about your specific situation.

Detailed answer

1) How do you tell whether the house is a probate asset?

“Probate” refers to the court-supervised process for distributing property that is owned in the deceased person’s name alone and that does not pass automatically by some other legal mechanism. In Maryland, a house will usually not be a probate asset if it passed at death by one of these nonprobate methods:

• Joint tenancy with right of survivorship or tenancy by the entirety — the surviving co-owner becomes owner automatically at death.
• Title held in a revocable living trust — the successor trustee steps in and controls the trust property without probate.
• Property held subject to a properly created transfer-on-death/beneficiary designation, or other deed that names a beneficiary who takes at death (where Maryland law and the deed support that transfer).
• Accounts, insurance, or retirement plans with beneficiary designations — these pass to named beneficiaries and avoid probate.

To decide whether the house is probate property, start by checking the deed (land records) to see how title is held and whether a trust or beneficiary transfer applies. If the deed lists the decedent as sole owner and no other nonprobate device applies, the property likely must go through probate.

2) If I’m a beneficiary (nonprobate owner), can I make mortgage payments to prevent foreclosure?

Yes. If title passed to you at death (for example, by right of survivorship or under a trust), you are the legal owner and you can make payments on the mortgage. Important points:

• Ownership by inheritance does not automatically erase the mortgage. The mortgage remains attached to the property until paid or refinanced. The lender can foreclose if payments are not made, regardless of whether the borrower changed by death.
• Lenders typically will accept payments from the new owner. But the lender may ask for proof of ownership (copy of death certificate and deed or trust instrument) and will want to know who will be responsible going forward.
• If you pay and later want reimbursement from the estate or other heirs, your right to repayment depends on the facts and may require a court claim. Get legal advice before assuming you’ll be reimbursed.

3) If the house is in the decedent’s name alone and the estate is in probate, who can make mortgage payments?

When title is part of the probate estate, the personal representative (called an executor if named in a will, or an administrator if appointed by the court) has authority to manage estate assets, pay estate debts, and protect property. That representative should address the mortgage and foreclosure risk. However:

• Anyone (an heir, family member, or potential beneficiary) may make voluntary payments to the mortgage lender to try to stop foreclosing. Those payments are treated as payments on the loan; they do not by themselves give you legal authority over the estate unless the court appoints you personal representative or the owner transfers title to you.
• If you make payments while the property is an estate asset, you should document each payment carefully (keep receipts and records). Later you may be able to ask the estate or the personal representative for reimbursement or to recognize an equitable interest, but recovery is not guaranteed and may require a court proceeding.
• The lender may insist the personal representative sign documents (forbearance agreements, loan modifications, or assumptions), so if there is no representative yet, the lender may delay giving relief until one is appointed or will accept payments without binding agreement.

4) Practical steps to protect the property and avoid foreclosure in Maryland

1. Confirm ownership: pull the deed in the county land records or ask an attorney/title company; find out whether title passed outside probate.
2. Notify the mortgage holder: send the lender a copy of the death certificate and explain the situation. Ask what documents they need and whether a forbearance, loan modification, assumption, or reinstatement is available.
3. Do not ignore foreclosure notices: lenders move quickly. Respond in writing and keep copies of everything.
4. If the estate is in probate, ask the Register of Wills (or the probate court) about appointing a personal representative and the timeline in your county. The personal representative has formal authority to act for the estate.
5. If you are making voluntary payments, get receipts and ask the lender to note payments on the loan record. Consider asking the lender to enter a short written forbearance or reinstatement agreement — even if you are not the personal representative — to reduce uncertainty.
6. Consider short-term alternatives: loan modification, repayment plan, refinancing (if you qualify), sale of the property, or a short sale negotiated with the lender.
7. Get legal advice quickly — a Maryland probate or real estate attorney can explain your rights, whether you can be appointed personal representative, and whether payment now creates any enforceable claim later.

5) If I pay the mortgage, can I later claim reimbursement or an interest in the house?

Possibly, but it depends on the circumstances. Maryland courts recognize some equitable claims (for example, unjust enrichment, constructive trust, or equitable lien) where one party paid debts to protect property and it would be unfair for others to benefit. But these claims are fact-specific and often require litigation. Getting court approval or a written agreement from the personal representative is a safer route.

6) Where to get Maryland-specific information and help

• Maryland Courts — Probate and Register of Wills information: https://www.mdcourts.gov/probate
• Maryland Attorney General — consumer resources about foreclosure and borrower rights: https://www.marylandattorneygeneral.gov/Pages/Consumer/

Bottom line: Whether an inherited house is a probate asset depends on how title and ownership transferred at death. If you already own the home (nonprobate transfer), you may make payments and take steps to prevent foreclosure. If the property is part of the probate estate, the personal representative has the formal authority, but family members can make voluntary payments and should act quickly while seeking appointment of a representative and legal advice.

Helpful Hints

• Get a copy of the deed and the death certificate as soon as possible.
• Contact the mortgage servicer immediately; ask for options in writing (forbearance, modification, assumption).
• Document every payment you make (date, amount, check number, to whom, and a copy of the lender’s receipt).
• Ask the lender to accept payments and to confirm in writing that those payments will stop foreclosure for a stated period.
• If the estate lacks a personal representative, visit the county Register of Wills page to learn how to request appointment — the process and forms vary by county.
• Before making large payments, consider getting basic legal advice about whether payment creates an enforceable lien or reimbursement right.
• Keep all heirs informed and try to get written agreement among interested parties about payments and next steps to avoid disputes later.

Disclaimer: This article is informational only and not legal advice. It does not create an attorney-client relationship. For advice about your particular situation in Maryland, consult a qualified Maryland probate or real estate attorney.