How property can pass outside probate and what to do about mortgage payments in South Dakota

Detailed Answer

Short answer: your inherited house may not be a probate asset because title already transferred outside probate (for example, by joint tenancy, a trust, or a beneficiary/transfer-on-death deed). Whether you can make mortgage payments to stop foreclosure without the estate administrator depends on who holds title and the mortgage terms. If title already passed to you, you can normally pay the loan (and should contact the servicer). If title remains in the decedent’s name and the property is still part of the estate, the administrator or personal representative typically controls estate assets and decisions about payments; however, creditors and mortgage servicers often accept payments from heirs or occupants to avoid foreclosure if you provide documentation and arrange it with them.

Why a house might not be a probate asset

• Joint ownership with right of survivorship: If the decedent held the property as joint tenants or tenants by the entirety with a survivor, title passes automatically to the surviving owner on death and the property bypasses probate.
• Living trust: If the decedent placed the home in a revocable trust and named a successor trustee or beneficiary, the trustee follows the trust terms and transfers title without probate.
• Beneficiary or transfer-on-death deed: Many states allow a deed that names a beneficiary or transfers property on death. When properly executed and recorded, these deeds transfer title directly at death and avoid probate. Check the deed recorded at the county register of deeds.
• Life estate or other nonprobate devices: An enhanced life estate deed or similar arrangements can leave ownership to a named remainder beneficiary upon the owner’s death.

South Dakota follows the Uniform Probate Code framework for probate administration. For statute text and procedures on probate and nonprobate transfers, see South Dakota Codified Laws, Title 29A (Uniform Probate Code): https://sdlegislature.gov/Statutes/Codified_Laws/Default.aspx?Title=29A. For general rules on recording and real property, see Title 43: https://sdlegislature.gov/Statutes/Codified_Laws/Default.aspx?Title=43.

Who controls mortgage payments?

Mortgage liens remain attached to the property regardless of whether the property went through probate. Key points:

• If you are the recorded owner now (for example, your name appears on the deed after a nonprobate transfer), you have the legal right to make payments, modify the loan, or pursue loss-mitigation options with the servicer.
• If the property is still titled in the decedent’s name and the estate is open, the administrator or personal representative is generally the person who should pay debts of the estate, including mortgage payments. Mortgage lenders typically look to the estate or the person with legal authority to act for the estate.
• Even if you are not the titleholder, many lenders will accept payments from an heir, family member, or occupant to avoid foreclosure. But accepting payments does not automatically grant you title, ownership interest, or protection against foreclosure unless the servicer agrees to modifications in writing.
• Making payments on a loan when you are not on title can be risky: courts may treat payments as gifts unless you have a written agreement. If you want reimbursement or a lien for payments you make, get a written contract or court order establishing your rights before advancing large sums.

Practical steps to take now (clear, action-oriented)

1. Check the county recorder/registrar of deeds to see who holds title and whether any beneficiary or survivorship deed or trust is recorded.
2. Contact the mortgage servicer immediately. Explain the situation, ask for a current payoff/escrow statement, and ask what documentation they need (death certificate, letters testamentary, recorded deed, or trust documents) to recognize a successor owner or pause foreclosure.
3. If the property bypassed probate and you are the new owner, request that the servicer update their records to your name and provide instructions for where to send payments.
4. If the property is part of the decedent’s estate and an administrator exists, ask the administrator to make payments or to authorize you (in writing) to make payments on behalf of the estate. If no administrator has been appointed but probate is required, explore emergency or expedited probate filings so someone has authority to act.
5. Get any agreement in writing. If the lender accepts your payments, get written confirmation that payments will be credited and that acceptance does not waive the lender’s foreclosure rights except as stated in the agreement.
6. Keep careful records of all payments, communications, and documents you provide to the servicer or estate representative.

When you should consult an attorney

Get legal help if:

• Title is unclear or the county records conflict with what you were told;
• The lender refuses to accept payments from you or threatens immediate foreclosure;
• Large payments or a loan modification are at issue and you want protection for repayment or to claim contribution against the estate;
• There are competing heirs or a dispute about who should control the property.

Helpful Hints

• Search the county recorder’s office online for the deed and mortgage documents before calling anyone—recorded deeds will show whether title transferred outside probate.
• Ask the mortgage servicer for a “mortgage note and payoff statement” so you know the exact amount needed to avoid default or foreclosure.
• Tell the servicer you are trying to avoid foreclosure; many servicers offer temporary forbearance, reinstatement plans, or loan modification for heirs who step in to make payments.
• If you pay to save the house but are not on title, get a signed written agreement from the estate or an order from the probate court to protect your investment.
• Consider short-term solutions first (forbearance, reinstatement) while you sort title and probate issues—these are less risky than unilateral payments without documentation.
• Keep copies of the death certificate, any court papers (letters testamentary/administration), recorded deeds, and communications with the lender in one folder.
• If time is limited and the estate is small, ask about South Dakota small‑estate procedures under the probate code (Title 29A) that may allow transfer without full administration.

Disclaimer: This article explains general principles under South Dakota law and is for informational purposes only. It is not legal advice. For advice about your specific situation, consult a licensed South Dakota attorney or the probate court in the county where the decedent lived.