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

Short answer: A house is not a probate asset in Idaho when ownership passes automatically at the owner’s death by operation of law (for example, joint tenancy with right of survivorship, a properly executed trust, or a valid transfer-on-death/beneficiary instrument). If title already passed outside probate and you are the new owner, the mortgage remains attached to the property and you can generally make payments to keep the loan current — but your legal options and the lender’s willingness to accept payments depend on the facts, the loan documents, and the lender’s policies. If the property is part of a decedent’s probate estate, an administrator or personal representative normally must handle payments and decisions for the estate.

Detailed answer — how Idaho law treats ownership and probate

Whether a house is a probate asset depends on how title to the property is held at the decedent’s death. Common non-probate paths are:

Joint tenancy with right of survivorship: When property is owned as joint tenants with right of survivorship, ownership automatically vests in the surviving joint tenant(s) at death.
Living trust: If the decedent placed the house in a revocable living trust and named a successor trustee, the trustee can transfer the house outside probate according to the trust terms.
Transfer-on-death / beneficiary deed: Some states allow deeds that name a beneficiary who takes title on death without probate; if Idaho residents use an effective beneficiary deed or other statutory transfer device, the transfer occurs outside probate. (See Idaho statutes on property and probate for details.)

When title passes outside probate, the property is typically not part of the probate estate and a court probate administration is not required to transfer title. The mortgage, however, is separate: a mortgage is an encumbrance on the property, and it survives the owner’s death until the debt is paid or otherwise discharged in accordance with the loan documents and applicable law.

Relevant Idaho Code topics that govern probate, property, and creditor claims include the probate/title provisions and statutes on real property and liens. See the Idaho Legislature website for statutory text and chapter indexes for Title 15 (probate), Title 55 (property), and Title 45 (mortgages/liens):

What it means for mortgage payments

Key points about mortgages after an owner dies:

If title passed to you outside probate (you now own the house), the mortgage stays attached. You are the owner and responsible for the property, though the lender still holds its lien until paid off or released.
If the house is part of a probate estate, the administrator/personal representative has the duty to protect estate assets, which generally includes making mortgage payments to preserve value while the estate is administered. Creditors have rights to make claims against the estate under Idaho probate rules.
Lenders often will accept payments from the person in possession to avoid foreclosure, but they may require proof of ownership, a signed authorization, or a loan modification/assumption package. Lenders’ internal policies differ and federal rules (for FHA, VA loans) or investor rules may affect what they will allow.
Paying the mortgage does not automatically grant you title or protect you from later claims if you are not the record owner. If you pay from your own funds without a written agreement, you may have limited remedies if the record owner or estate later disputes ownership.

Practical steps you can take in Idaho

Check title records immediately. Search the county recorder’s office for the deed. That will tell you whether title passed automatically (joint tenancy, beneficiary deed, trust transfer) or remains in the decedent’s name.
Contact the mortgage servicer right away. Explain that the borrower died, provide a death certificate if requested, and ask what documentation they require to accept payments from you (survivor, heir, or occupant). Ask about loss mitigation, forbearance, loan assumption, or short sale options. Get the servicer’s response in writing.
If title already passed to you: You can usually make payments to keep the loan current. Keep copies of all payments and correspondence. If the lender refuses, request written reasons and escalate to a loss-mitigation department or ombudsman.
If property is in probate: The administrator or personal representative should be appointed by the probate court and then handle mortgage payments. If no representative is acting and payments are needed to prevent foreclosure, a family member can petition the court to be appointed as personal representative or ask the court for limited authority to protect estate property.
Document any payment agreement. Before making substantial payments, get a written agreement with the estate representative or with the beneficiary (and with the lender if possible) describing reimbursement or credit if title changes later.
Consider filing a claim or petition in probate court if necessary. If the estate is not being administered and the property is in danger of foreclosure, consult a probate attorney about emergency petitions to preserve estate property.

Common scenarios and what usually happens

Scenario A — House passed by joint tenancy or beneficiary deed

You are the recorded owner. The mortgage remains attached. You can pay to avoid foreclosure; the lender will generally accept payments from the owner. If you want the mortgage in your name alone, ask about loan assumption or refinancing.

Scenario B — House is in a trust

The successor trustee has authority to manage the property and pay the mortgage. You should coordinate with the trustee.

Scenario C — House is part of probate and no administrator is acting

If no one is managing the estate, mortgage payments may stop and foreclosure may proceed. You can seek appointment as personal representative or ask the court for interim authority to preserve the property. Lenders may accept payments from a family member if they have written authorization, but they may insist on a personal representative’s involvement.

What you should gather now

Recorded deed and title information (county recorder).
Copy of mortgage and promissory note (from mortgage servicer).
Death certificate of the decedent.
Any trust documents, beneficiary deeds, or wills that affect the property.
Records of any mortgage payments you make (checks, bank transfers, receipts).
Written communications with the lender.

When to consult an Idaho attorney

Talk with a probate or real property lawyer if any of the following apply:

Title is unclear or you cannot find the deed.
The lender refuses payments or threatens immediate foreclosure.
There is a dispute among heirs or a conflict with the estate representative.
You need help petitioning the probate court for appointment or emergency relief.

Helpful hints

Search the county recorder’s records first — deed language determines a lot.
Always get lender instructions in writing before making payments on someone else’s loan.
Keep careful receipts and notes of all phone calls with the mortgage servicer (date, name, what was said).
If you pay to save the property, consider a written agreement describing the repayment or credit arrangements.
Ask the lender about loss mitigation (forbearance, loan modification), which can buy time and avoid foreclosure.
If you are living in the house, understand that possession does not equal legal title; protect yourself with written agreements or court authority if necessary.
Act quickly. Foreclosure timelines can move fast once payments stop.

Bottom line

A house that passed outside probate is not a probate asset, but the mortgage lien remains and must be handled. If you became owner outside probate, you can generally make payments to avoid foreclosure; if the property is still part of an estate, the personal representative should act, and you may need court involvement to obtain authority to make payments or protect the property. Because outcomes turn on title records, loan documents, and lender policy, speak with a qualified Idaho attorney or contact the mortgage servicer for specific direction.

Disclaimer: This article explains general principles under Idaho law and is for educational purposes only. It is not legal advice. For advice specific to your situation, consult a licensed Idaho attorney.