Disclaimer: This is general information, not legal advice. I am not a lawyer. For advice about your specific situation, consult a licensed Georgia probate or real estate attorney.
Detailed Answer
If your father died owning a home and you want to keep the house and take over the mortgage under Georgia law, you generally must handle two separate issues: (1) transfer of the property title to you, and (2) the mortgage lender’s requirements for allowing you to stay on the loan or to refinance. Below are the practical steps, the typical legal rules that control each step, and how to handle common complications.
1. Confirm how title to the home transfers at death
Title determines whether you automatically become the owner or whether someone must open probate to transfer title.
- If the property was owned jointly with right of survivorship (for example, joint tenancy or tenancy by the entirety for married couples), ownership usually passes immediately to the surviving owner. In that case you become the owner by operation of law and can present the death certificate and proof of the survivorship to the mortgage lender and the county land records office.
- If the property was held solely in your father’s name, you must get title through probate (if there’s a will) or by the Georgia intestacy rules (if there’s no will). Probate courts handle the appointment of an executor or administrator who has authority to transfer title. See the Georgia Probate Court resources for local procedures: https://georgiacourts.gov/probate-court/
2. Probate and evidence of authority to act
If probate is required, the personal representative (executor or administrator) will receive letters testamentary or letters of administration from the probate court. Those documents show who has legal authority to manage the estate, pay debts, and transfer property. The lender will generally want to see either a copy of the recorded deed that transfers title, or the probate paperwork showing the personal representative’s authority.
For information about Georgia estate administration and statutes, see the Code of Georgia (Title 53 covers wills and estate administration): https://www.legis.ga.gov/ (select Title 53 for wills, trusts, and administration of estates).
3. Notify the mortgage servicer and request their requirements
Contact the mortgage servicer as soon as possible. You should provide a certified copy of the death certificate and, when available, probate documents or a recorded deed. Ask the servicer three key questions:
- Will the servicer allow an assumption of the existing loan (transfer of the mortgage obligation to you) and what are the requirements?
- Will the servicer accelerate the loan or call it due on transfer of title? (See discussion of federal limitations below.)
- What documentation and credit/qualification steps are needed to refinance the loan into your name?
4. Assumption vs. refinance vs. staying in title subject to mortgage
There are three common paths:
- Assume the loan — Some loans are assumable. The lender may require you to apply and qualify. If the lender approves, you formally assume the mortgage and become personally responsible for payments.
- Refinance — You may apply for a new mortgage in your name to pay off the existing loan. This is often required if the loan is not assumable or the lender will not allow an assumption without qualification.
- Take title subject to the mortgage — The deed can transfer title to you while the original mortgage stays in the lender’s name. You make payments but you are not personally liable on the existing loan unless you formally assume it. This can work, but it gives you less protection and may complicate future sales or refinancing.
5. Federal rule that can limit enforcement of “due-on-sale” after death
Even when a mortgage has a due-on-sale clause, federal law restricts lenders from enforcing that clause in certain transfers, including transfers by reason of death to a relative. The Garn–St. Germain Depository Institutions Act provides protections for certain transfers on the death of a borrower. You can read the federal provision here: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title12-section1701j-3&num=0&edition=prelim
In practice, that federal protection often prevents a lender from immediately calling the loan due just because title passes to a child by inheritance. However, the lender still has options: the servicer can require you to qualify to assume the loan, seek refinancing, or pursue foreclosure if payments are not kept current.
6. Documents the lender will typically require
- Certified copy of the death certificate
- Recorded deed (if title has been transferred) or letters testamentary/letters of administration from probate court
- Proof of identity and proof of income/credit documentation if the lender requires qualification to assume the loan
7. If you cannot qualify or the loan cannot be assumed
If you cannot qualify for assumption or refinance, options include:
- Continue making payments while deciding if you can later refinance
- Arrange a short sale or deed-in-lieu with the lender if the mortgage balance exceeds the home value
- Sell the home (if you have title or authority as personal representative) and use sales proceeds to pay the mortgage
8. Practical timeline and next steps
- Locate the mortgage note and deed.
- Obtain several certified death certificates from the funeral home or vital records office.
- Find any will and contact the probate court in the county where the home is located to learn whether probate is required: https://georgiacourts.gov/probate-court/
- Notify the mortgage servicer, provide the death certificate, and ask about assumption, refinance, and required documents.
- If probate is needed, open the estate and obtain letters authorizing transfer of the property.
- If the lender requires you to qualify, gather financial documents to apply for assumption or refinancing.
Helpful Hints
- Act quickly to notify the mortgage servicer and keep current on payments to avoid late fees and foreclosure risk.
- Get multiple certified death certificates at once; lenders, county clerks, and title companies will each want originals.
- If you’re listed as a joint owner with survivorship rights, bring certified death certificate and current recorded deed to the county recorder and the servicer to update records.
- Ask the servicer whether the loan is assumable and what documentation is required to assume without refinancing.
- If affordable, refinancing into your own name gives the cleanest outcome: you become the sole obligor and owner on both title and mortgage.
- Keep careful records of all communications with the mortgage servicer (dates, names, and what was requested).
- Consult a Georgia probate or real estate attorney if the estate is complicated, if there are disputes among heirs, or if the lender is uncooperative.
- Use the Georgia courts’ probate resources to find local procedures and contact information: https://georgiacourts.gov/probate-court/
If you want, I can: (a) draft a checklist of documents to gather, (b) suggest specific questions to ask the mortgage servicer, or (c) list how to find a probate attorney in your county.