Florida: When an Inherited House Is Not a Probate Asset — Paying the Mortgage to Avoid Foreclosure | Florida Probate

Understanding why an inherited house might not be a probate asset — and whether you can make mortgage payments to avoid foreclosure

Detailed Answer

Short answer: A house can avoid probate because ownership passes automatically by law or contract (for example, by joint ownership, tenancy by the entireties, a trust, or a designated beneficiary/transfer-on-death disposition). Even if the home is not a probate asset, the lender’s mortgage lien generally remains attached to the property, and unpaid mortgage payments can lead a lender to foreclose. You can usually make payments to the lender to keep the loan current, but doing so does not automatically clear title problems or replace the need for an administrator/representative when third parties require formal proof of authority.

Why a house might not be in probate

“Probate” is the court process used to gather a decedent’s assets, pay creditors, and transfer titled assets that belong to the decedent at death. Property that passes without going through probate is called a non‑probate asset. Common reasons a house might be non‑probate under Florida law include:

Joint tenancy with right of survivorship or tenancy by the entireties (survivor automatically owns the property).
A living trust that already holds title — the successor trustee distributes the property under the trust terms.
A recorded transfer-on-death or beneficiary designation that names a person who takes at death (where Florida law allows such a transfer).
Other contractual or statutory arrangements that move title outside the probate estate.

When title passes automatically, there may be relatively simple steps to record the new owner’s right (for example, recording a death certificate and an affidavit or providing the trust paperwork). Because title already passes by operation of law or contract, the property is generally not part of the decedent’s probate estate and the probate court does not need to distribute it.

Relevant Florida law

Florida’s probate and nonprobate rules are found in the Florida Probate Code and related chapters. For example, the rules for administering an estate are in Chapter 733 (Administration of Decedent’s Estate), and Florida provides procedures for disposition of property without formal administration under Chapter 735. See the Florida Statutes for details:

What happens to the mortgage when the house is non‑probate

Title passing outside probate does not erase lien rights. A mortgage is a consensual lien on the property. Unless the lender has released the mortgage or the loan has been paid, the lien generally remains attached to the property and the lender can seek foreclosure to enforce it. Whether foreclosure proceeds and how quickly depend on the loan documents, whether the loan is in default, and the lender’s policies and practices.

Can you make payments without the administrator’s help?

Yes — in many cases an heir or beneficiary can make mortgage payments to keep the loan current and avoid or delay foreclosure. Practical points to consider:

If title has already passed to you (for example, you are the named survivor or beneficiary and the deed or trust shows you as owner), the lender will usually accept payments from you the same as from any owner.
If title has not yet been changed (deed still in decedent’s name), the lender may still accept payments from an heir, but some lenders require written authorization, evidence of succession, or proof of authority before they will change account names or consider requests (like loan modification or assumption).
Document every payment. Use checks, bank transfers, or other traceable methods. Keep receipts and correspondence. If you are protecting your own funds, get written confirmation from the lender that the account was kept current.
Payment alone does not clear title. If you want clear title you will likely need a recorded transfer (e.g., death certificate recorded, trustee certificate, recorded transfer-on-death instrument, or probate deed). If the property needs a formal estate representative to transfer or sell it, an heir’s payments do not substitute for court authority where the law requires administration.

Special protections and issues to watch for

Homestead: Florida homestead rules give strong protection to a surviving spouse and minor children. If the decedent’s home is homestead, special rules determine who keeps the home and whether administration is required. Homestead rights can affect whether an administrator is needed and how creditors may reach the home. See the Florida Constitution and consult an attorney for homestead issues.
Tenancy by the entireties: Property owned by spouses as tenants by the entireties may be insulated from creditors of only one spouse. Mortgages and other liens depend on how the original loan was executed.
Lender consents and assumptions: If you wish to assume the mortgage, many loans require lender approval. Some loans include a due‑on‑sale clause or other terms that affect transfer and assumption.
Foreclosure is a legal action: In Florida, foreclosure is typically a judicial process. Even if you are making payments, a lender that believes the loan is in default or that the person paying is not the obligated borrower might still start foreclosure unless you obtain a written agreement resolving the issue.

Practical next steps

Check title records and mortgage status at the county recorder/property appraiser to see how title is held and whether the mortgage is recorded against the property.
Contact the lender immediately. Tell them you are trying to prevent foreclosure, ask for account details, request a payment history, and ask about loss‑mitigation options (forbearance, loan modification, assumption, or short sale).
Get documents: death certificate, the deed, trust documents (if any), and mortgage note and deed of trust/mortgage. These will determine whether title already passed and what the lender will require.
Make payments in a traceable way and keep written proof. If you are paying but are not yet the record owner, ask the lender to document that the account is current and request written confirmation of any forbearance or payment plan.
If title is unclear or the lender will not cooperate, consider opening probate (or asking a beneficiary to seek summary disposition if Florida’s non‑administration rules apply) so a court‑appointed representative can resolve creditor claims and transfer title.
Talk to a Florida probate or real estate attorney if you are unsure whether the home is non‑probate, if homestead is involved, or if foreclosure is pending. An attorney can advise whether you should open formal probate or use a non‑administration procedure.

Important: This answer explains general legal principles under Florida law but does not apply every fact to every case. Specific outcomes depend on facts such as how title is held, loan documents, whether homestead or tenancy by the entireties applies, and the lender’s actions.

Helpful Hints

Immediately contact the mortgage servicer by phone and follow up in writing (certified mail or email) so there’s a record of your communications.
If you arrange payments, keep bank statements, canceled checks, and written acknowledgments from the lender showing the account is current.
Record the decedent’s death certificate and any transfer instruments required to change title — this often makes it easier to deal with the lender and the county office.
Check whether the property is homestead. If so, understand the special rights of a surviving spouse or minor children before making decisions about sale or transfer.
Ask the lender about loss‑mitigation options (forbearance, modification, assumption, deed‑in‑lieu) — many lenders have COVID‑era and other hardship programs that may still apply.
If foreclosure is already filed, note deadlines and respond quickly. Missing a court date or failing to file required papers can make it harder to protect your interest.
Keep communications professional and in writing. When possible, get lender agreements in writing before relying on them.
Consult a Florida probate or real estate attorney if title is disputed, homestead issues exist, the mortgage is large or complex, or foreclosure is imminent.