Nebraska: Why an Inherited House May Avoid Probate and Whether You Can Pay the Mortgage to Prevent Foreclosure

Detailed Answer

When someone dies, whether the decedent’s house must pass through probate depends on how title to the house is held at the time of death. In Nebraska, many houses are not “probate assets” because the ownership interest transfers automatically or is already controlled by a separate legal vehicle. If title passes outside probate, the named survivor or beneficiary becomes the owner and can act on the property without waiting for an administrator or personal representative to be appointed by the probate court.

Common ways a house avoids probate in Nebraska

Joint tenancy with right of survivorship: If the decedent and another person (for example, a spouse or child) owned the house jointly with a right of survivorship, the survivor automatically owns the deceased owner’s share at death. The survivor will typically record a death certificate and an affidavit to clear title.
Property held in a revocable trust: If the house was title-owned by a living trust (revocable living trust) at death, the successor trustee distributes the property according to the trust terms. That distribution is outside probate.
Beneficiary or transfer-on-death deed: Some ownership transfers occur because the deed names a beneficiary or uses a transfer-on-death mechanism. If a valid beneficiary deed exists, title passes directly to the named beneficiary.
Survivorship features on the deed or other recorded document: Language in the deed or recorded estate planning instruments can create nonprobate transfers.
Small estate procedures or exemptions: Nebraska has simplified procedures for small estates that can allow transfer without a full probate. (See Nebraska probate law resources linked below.)

To confirm whether a house is a probate asset, check the deed recorded at the county register of deeds (the deed is the primary evidence of how title is held). If the deed names a surviving owner with survivorship language, or if title is already in a trust or beneficiary deed, the property likely will not be part of probate.

Who can make mortgage payments?

Whether you can make payments to avoid foreclosure depends on whether the house is a probate asset and on the mortgage lender’s requirements:

If the house passed outside probate and you are the new owner: You can make payments, contact the mortgage servicer, and take loss-mitigation steps as the owner. Provide the servicer with a copy of the recorded deed and the decedent’s death certificate. The servicer will tell you what documentation it needs to treat you as the new borrower or owner on the account.
If the house is titled in the decedent’s name and is a probate asset: The personal representative (executor/administrator) of the estate has the legal authority to manage estate property, including making mortgage payments, selling the property, and deciding whether to keep or abandon it. Nebraska’s probate statutes set out the court’s role and the personal representative’s duties for estate administration (see Nebraska probate law resources below).
If you are an heir or beneficiary but not the personal representative or the recorded owner: You can make voluntary payments to the mortgage company to protect your interest, but payments made by a non-owner can create accounting and legal complications. A lender may or may not accept payments from someone who is not on the mortgage note. Acceptance of such payments does not necessarily give you title. If the lender accepts payments, keep careful records and get a written acknowledgment showing how payments were applied.

Practical steps to avoid foreclosure

Identify whether the house is a probate asset. Obtain a copy of the deed from the county register of deeds and check for survivorship language or beneficiary designations.
Contact the mortgage servicer immediately. Explain the situation, provide the decedent’s death certificate, and ask what documentation they require to discuss the account and to pursue loss-mitigation options (forbearance, loan modification, reinstatement, short sale, deed-in-lieu).
If the estate is in probate, ask the personal representative to act promptly. If no personal representative is appointed, an interested person may petition the probate court for appointment or for limited authority to act to protect the property.
If you plan to make payments as a non-owner, get the lender’s written acceptance and confirm how payments will be applied and whether making payments will affect foreclosure or deficiency rights.
Keep full records: copies of correspondence, account numbers, receipts, and a record of all payments and conversations with the lender.
Consider emergency motions in probate court if foreclosure is imminent and the personal representative will not act. A court can authorize interim actions to preserve estate property.

Example (hypothetical facts)

Suppose a parent dies owning a house in their name alone, with a mortgage still outstanding. The deed shows sole ownership, so the house is a probate asset. The lender begins foreclosure due to missed payments. In that case, the estate’s personal representative must step in to make payments, negotiate with the lender, or sell the house. If no personal representative exists and foreclosure is imminent, a child who is an heir could petition the probate court for appointment as personal representative or for temporary authority to make payments or sell the house to avoid foreclosure.

Where to look in Nebraska law and court resources

General Nebraska probate statutes and rules govern how estates are administered and who has power to manage estate property. For an overview of Nebraska probate law and procedures, see the Nebraska Legislature’s probate chapter and the Nebraska Judicial Branch probate self-help pages:

Those resources explain how personal representatives are appointed, the scope of their authority, and available forms and local procedures. If a specific statute applies to your situation, a local probate attorney can point it out and explain how it affects your rights and options.

When to consult an attorney

Talk to a Nebraska probate or real estate attorney if any of these apply:

You need to determine whether the house is a probate asset.
The lender refuses to accept payments from a beneficiary or heir.
Foreclosure is imminent but no personal representative has been appointed.
The estate cannot afford mortgage payments and you must evaluate options (sale, short sale, deed-in-lieu, surrender).

An attorney can file a petition to appoint a personal representative, request interim court authority to prevent foreclosure, and negotiate with the lender or prepare a sale if needed.

Summary

Many inherited houses are not probate assets because title passes automatically through joint tenancy, beneficiary deeds, or trusts. If the house is not a probate asset, the new owner can make mortgage payments and work with the lender. If the house is part of the probate estate, the appointed personal representative has authority to manage the mortgage and act to prevent foreclosure. Heirs can sometimes make voluntary payments, but they should get written confirmation from the lender. When in doubt or when foreclosure is looming, act quickly: verify title, contact the servicer, and consult a Nebraska probate or real estate attorney.

Disclaimer: This article explains general Nebraska procedures and is for informational purposes only. It is not legal advice. For advice about a specific situation, consult a licensed Nebraska attorney.

Helpful Hints

Start by pulling the recorded deed at the county register of deeds—this often answers whether the property avoids probate.
Gather a certified copy of the death certificate before contacting the lender or recording documents.
Contact the mortgage servicer immediately and ask for options in writing. Note the representative’s name and the date/time of all calls.
If you plan to pay the mortgage as a non-owner, get written confirmation that the servicer will accept the payments and how they will be applied.
If foreclosure is close, ask the probate court for emergency relief or temporary authority if no personal representative exists.
Keep clear records of all payments, communications, and documents you send or receive.
When possible, consult a Nebraska attorney experienced in probate and real estate—early legal advice often prevents costly mistakes.

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