How an Inherited House Can Be Outside Probate — and What You Can Do About the Mortgage in Rhode Island

Short answer: A house you inherited may not go through probate if title passed automatically (for example, by joint tenancy, a trust, or another survivorship mechanism). Whether you can keep the lender from foreclosing by making mortgage payments without the administrator depends on who currently holds legal title and how the lender treats payments from someone who is not the borrower or legal owner. Act quickly: lenders will foreclose if payments stop, so contact the mortgage servicer right away and gather proof of your status and the decedent’s death.

Detailed answer

1. Why the property might not be a probate asset in Rhode Island

Probate is the court process that identifies a decedent’s assets and pays debts out of the estate. But not every asset passes through probate. Common reasons a house is outside probate:

• Joint ownership with right of survivorship. If the decedent owned the house as a joint tenant with right of survivorship or as tenants by the entirety with a spouse, ownership automatically passes to the surviving co-owner at death. No probate is required to transfer full ownership.
• Trust ownership. If the home was held in a living trust, the trustee follows the trust terms and transfers title to the named beneficiary without probate.
• Beneficiary or transfer-on-death arrangements. Some title documents or state devices let an owner name a beneficiary to take title at death. If such a device was validly executed, the transfer occurs outside probate.
• Property controlled by contract or law. Examples include life estates, property governed by community property or survivorship forms, or accounts with payable-on-death designations tied to ownership of the home.

In Rhode Island, probate and administration of wills and estates are governed by state law (see R.I. Gen. Laws Title 33 for statutes on wills and administration). For general information about the probate process in Rhode Island, see the Rhode Island Judiciary’s Probate & Family Court pages: https://www.courts.ri.gov/Courts/ProbateFamily/Pages/default.aspx. For statutory text on wills and administration, see Title 33: https://www.rilegislature.gov/Statutes/TITLE33/.

2. What happens to the mortgage when the owner dies

Two separate things exist: the house (title) and the mortgage (debt secured by the house). Death does not erase the mortgage. Typical rules:

• The mortgage remains attached to the property as a lien. Whoever holds title to the property after the owner’s death takes title subject to that lien.
• Some mortgages have an acceleration clause or a due-on-sale clause. Lenders can, in limited circumstances, call the loan due. Many lenders will not do so immediately after a borrower’s death, but they can act if the loan terms allow and payments stop.
• Whether the lender can foreclose depends on whether payments stop and whether someone with an interest in the property can restore or assume the loan.

Rhode Island property and mortgage law is in Title 34 of the Rhode Island General Laws; see Title 34 for statutory language on property and liens: https://www.rilegislature.gov/Statutes/TITLE34/.

3. Can you make mortgage payments without the administrator’s help?

Short answer: Yes, often — but with important conditions and risks. What you can and should do depends on whether you already hold legal title and on the lender’s policies.

If you already own the house outright (title passed to you outside probate)

• You are the legal owner and therefore can make payments, deal directly with the lender, and request assumption or modification of the loan (if the lender permits).
• Before the lender accepts you as the new borrower, you may need to present a certified copy of the death certificate and proof of your title (e.g., recorded survivorship deed, trustee’s deed, or other recorded instrument).

If the house is still in someone’s estate (probate) or you have not recorded a change of title

• If an administrator or executor has been appointed, that person has the legal duty and authority to preserve estate assets (which usually includes paying necessary expenses to prevent waste, including mortgage payments) unless the court orders otherwise.
• If you are not the administrator, you can still make payments voluntarily and the lender will generally accept them. The lender may require the administrator or executor to sign for certain transactions (for example, to assume or modify the loan), but accepting mortgage payments to avoid foreclosure is usually allowed from a third party.
• Accepting payments from a third party does not automatically transfer title to that payer. If you plan to pay with the expectation of later receiving title or an ownership interest, get written agreements and consult an attorney. Courts can treat unpaid debts, reimbursements, or improvised arrangements as disputes in probate.

4. Practical steps to avoid foreclosure

Time is critical. Use this checklist:

1. Find and read the deed and mortgage. Determine how the house is titled (joint tenancy, trust, or sole ownership) and whether a lien exists.
2. Get certified death certificate(s). Lenders require a death certificate before they discuss the account or process title changes.
3. Contact the mortgage servicer immediately. Tell them of the borrower’s death, explain who is occupying the property, and ask about options: forbearance, loan modification, assumption, or deed-in-lieu. Keep written records and confirm any agreements in writing.
4. If probate is open, contact the administrator/executor or the probate court. The administrator is responsible for protecting estate assets; court orders may be needed for major steps like selling the property.
5. Make payments and keep proof. If you or someone else makes payments to prevent foreclosure, keep cancelled checks, bank records, and written acknowledgments from the lender. Payments by a non-borrower are usually accepted but get receipts.
6. Consider formal options. If you want to keep the house, ask the lender about assumption of the loan (some mortgages allow it) or a loan modification. If you plan to buy the house from the estate or be added to title, document everything and consult a lawyer.

5. Special Rhode Island considerations

Rhode Island uses established probate procedures and property statutes. If the estate is being administered in Probate Court, the administrator has a statutory duty to preserve estate property and pay estate debts under court supervision (see R.I. Gen. Laws Title 33 for statutes about administration and fiduciary duties: https://www.rilegislature.gov/Statutes/TITLE33/).

If foreclosure is imminent, you should also review Rhode Island’s rules and court procedures regarding mortgage enforcement or foreclosure (see Title 34 for property and lien law: https://www.rilegislature.gov/Statutes/TITLE34/), and contact the Rhode Island Judiciary for local forms and guidance: https://www.courts.ri.gov/.

Helpful Hints

• Do not ignore lender notices. Foreclosure timelines move quickly.
• Get a certified copy of the death certificate immediately. Lenders and title companies will ask for it.
• Record any document you receive transferring title (survivorship deed, trustee’s deed, etc.) at your local land records office so the public record shows current ownership.
• If you plan to make payments but are not yet owner, ask the lender for written confirmation that your payments will stop foreclosure and explain whether payments by you will be treated as curing the default or only as temporary relief.
• Keep copies of all communications with the lender, the probate court, and any representative of the estate.
• Before you pay large sums expecting to gain ownership, talk with a probate or real estate attorney — informal agreements can lead to disputes in probate court.
• For free mortgage counseling, consider contacting a HUD-approved housing counselor (see https://www.consumerfinance.gov/ for federally supported resources).

Where to get help in Rhode Island

• Rhode Island Judiciary — Probate & Family Court: https://www.courts.ri.gov/Courts/ProbateFamily/Pages/default.aspx
• Rhode Island General Laws (Title 33 and Title 34): Title 33 and Title 34
• Consumer help and HUD-approved counselors: https://www.consumerfinance.gov/

Final practical summary: If title already passed to you outside probate, you can pay the mortgage and deal with the servicer as the owner. If the house is still an estate asset, the administrator normally handles mortgage payments, but you may still pay to avoid foreclosure. In any case, contact the lender immediately, keep written proof of payments and communications, and consult a Rhode Island probate or real estate attorney if the situation is contested or the lender will not cooperate.

Disclaimer: This article explains general Rhode Island procedures and is for educational purposes only. It is not legal advice. For guidance specific to your situation, consult a licensed Rhode Island attorney or contact the Rhode Island Probate Court.