Detailed Answer

Short answer: A house is not a probate asset if ownership passes automatically at the decedent’s death by operation of law or by a properly recorded non‑probate document (for example, a beneficiary deed, joint tenancy with right of survivorship, trust ownership, or an enhanced life‑estate deed often called a “Lady Bird” deed). Even when the house avoids probate, the mortgage does not disappear. You (or someone holding title) can usually make mortgage payments to prevent foreclosure, but whether you can negotiate with the lender or sign binding loan paperwork without a personal representative (administrator/executor) depends on who holds title, the loan documents, and the lender’s requirements.

How property avoids probate in Texas

Probate is the court process for transferring ownership of assets that are legally part of the decedent’s probate estate. In Texas, certain ways of holding title cause real property to pass outside probate:

• Joint tenancy or other survivorship ownership where title passes automatically to the surviving owner.
• Property owned by a living trust: the trustee (or successor trustee) controls the property and it does not go through probate.
• Transfer‑on‑death / beneficiary deeds or similar instruments that name a beneficiary who becomes owner on death (Texas recognizes transfer‑on‑death mechanisms; consult recorded deed language or a title examiner).
• Enhanced life‑estate deeds (commonly called “Lady Bird” deeds) that reserve the owner’s rights during life and transfer full ownership at death.

To confirm whether a particular house is a probate asset, you must look at the recorded deed(s) at the county clerk’s or county recorder’s office and any trust documents or beneficiary designations. If title already passed to someone by a recorded survivorship instrument or trust, that person is the legal owner and probate is not required to transfer title.

Why mortgage obligations remain

Death of the borrower does not automatically cancel the mortgage. The mortgage or deed of trust remains a lien on the property until it is paid off or released. Lenders have the right to collect payments and, after default, to pursue foreclosure under Texas law. Texas law governs non‑judicial foreclosure mechanics for deeds of trust (see Texas Property Code, Chapter 51) and lenders commonly use those remedies when a borrower defaults. For an overview of foreclosure powers under Texas law, see the Texas Property Code: https://statutes.capitol.texas.gov/Docs/PR/htm/PR.51.htm

Can you make mortgage payments without the administrator or personal representative?

Generally, yes — you can make payments — but the practical and legal effects depend on who is on title and what the lender requires:

• If title already passed to you (for example, by beneficiary deed, survivorship ownership, or trust), you are the owner. You can continue making payments and are the person the lender will treat as the property owner for payment and foreclosure purposes. You can request loss mitigation, forbearance, or a loan modification as the owner.
• If title did not pass and the house remains titled solely in the decedent’s name but is technically non‑probate (rare), you may be able to make payments to stop foreclosure, but the lender may ask for proof of authority to act on behalf of the estate. If the lender requires estate authority, the personal representative (administrator or executor) normally has the exclusive authority to bind the estate in contracts or enter into loan modifications.
• If the house is a probate asset (needs administration), a personal representative appointed by the probate court generally has the authority to manage estate assets, including making mortgage payments, selling the property, or negotiating with the lender. Family members sometimes make voluntary payments out of pocket to keep the loan current; that can prevent a foreclosure sale while the estate is opened, but payment alone does not transfer title or legally bind the lender to changes unless the lender agrees in writing.

Practical steps to avoid foreclosure

1. Confirm ownership: Pull the recorded deed at the county clerk/recorder to see who holds title now.
2. Obtain a copy of the mortgage or deed of trust to find the lender, loan number, and acceleration/default provisions.
3. Notify the mortgage servicer immediately. Provide the decedent’s death certificate and explain whether you now hold title. Ask how to make payments, and get any repayment/forbearance agreements in writing.
4. Make payments with the loan account number. Keep proof: bank records, confirmation numbers, and written acceptance from the servicer showing payments were received and applied.
5. If the lender demands estate authority or refuses to accept payments, consider opening a probate estate or seeking appointment as temporary administrator. A personal representative has clear authority to deal with lenders and sign agreements.
6. Explore loss mitigation: short sale, deed in lieu, loan modification, or reinstatement. Lenders often have options if contacted before a sale.
7. Get a title or probate attorney’s help if the ownership situation is unclear, the lender refuses to cooperate, or foreclosure deadlines are imminent.

Timing and foreclosure under Texas law

In Texas, non‑judicial foreclosures under a deed of trust are common and governed by the Property Code (see Chapter 51). A lender typically must follow the statutory notice and sale procedures before a non‑judicial sale. Because of the relatively fast foreclosure timeline in Texas, contacting the servicer and acting quickly is crucial. See Texas Property Code, Chapter 51 for statutory procedures: https://statutes.capitol.texas.gov/Docs/PR/htm/PR.51.htm

When a personal representative is needed

If title did not pass outside probate (no beneficiary deed, no survivorship ownership, and property not in a trust), the decedent’s real property is likely a probate asset. In that case, the court‑appointed personal representative (called an executor or administrator) has the legal authority to manage and dispose of estate property. Only the personal representative can, without additional written consents, sign estate deeds, obtain clear title, or bind the estate in long‑term agreements. If you are a family member who wants to keep the house, you may:

• Ask the personal representative to make payments or to allow you to make them and document the arrangement in writing.
• Ask the personal representative to transfer title to you (if that is permitted by the will or intestacy rules) or to consent to a sale.
• If there is no personal representative and creditors are pressing, consider petitioning the probate court for appointment so someone has authority to act.

Key Texas statutes and resources

• Texas Property Code, Chapter 51 (foreclosure sale procedures): https://statutes.capitol.texas.gov/Docs/PR/htm/PR.51.htm
• Transfer‑on‑death / beneficiary deed authority and rules are part of Texas property and estates law; if you find language referencing a beneficiary deed or enhanced life‑estate in recorded instruments, consult the deed and County records. (For the statutory text on transfer instruments, check the Texas Estates Code and recorded deed forms at the county clerk’s office.)

When to get an attorney

Consider talking to a Texas probate or real estate attorney if any of the following apply:

• Title is unclear or the deed seems inconsistent with what people expected.
• The lender refuses to accept payments or insists on dealing only with a personal representative.
• Foreclosure timelines are imminent and you need help negotiating a solution fast.
• There are disagreements among heirs about what to do with the property.

Helpful Hints

• Check the deed first: the county clerk’s office will have the recorded deed. That tells you whether you’re on title now.
• Contact the mortgage servicer immediately. Prompt contact often creates options (forbearance, loan workout) that disappear if you wait until after a sale notice.
• Make payments with the loan account number and get written confirmation that the payments were accepted and applied.
• Keep a certified copy of the decedent’s death certificate handy; servicers typically request it.
• If you pay from your own funds, document the payment source and agreement terms (are you a lender to the estate, or will you expect credit toward purchase of the property?). Put any agreement in writing.
• If the property is in a trust, contact the successor trustee — trusts avoid probate and the trustee controls the property.
• When in doubt, get a title search or short consultation with a probate/real estate attorney to confirm status and next steps.

Disclaimer: This article explains general principles of Texas law for informational purposes only. It is not legal advice, and it does not create an attorney‑client relationship. For advice about a specific situation, consult a licensed Texas attorney.