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

Short answer: A house will not go through probate if ownership passes automatically at death (for example, to a surviving joint tenant, a trust beneficiary, or under a valid beneficiary designation). If title already transferred outside probate and you are the new owner, you can make mortgage payments because you are responsible for the loan. If the house is still part of the decedent’s probate estate, only the personal representative (administrator/executor) normally has authority to manage estate property—though a borrower, occupant, or beneficiary can often work with the mortgage company to avoid foreclosure while parties sort out probate. This article explains how to check which situation applies in Kentucky and practical steps to protect the property.

How property can avoid probate in Kentucky

“Probate” is the court-supervised process that identifies a decedent’s assets, pays creditors, and distributes property to heirs. In Kentucky, many assets transfer outside probate because title or law gives them to someone immediately at death. Common ways a home can be nonprobate include:

Joint ownership with right of survivorship: If the decedent held the house as a joint tenant with right of survivorship (or, for spouses, as tenants by the entirety where applicable), the surviving co-owner automatically owns the property at death.
Trust ownership: If the house is owned by a revocable living trust or other trust, the trust terms control distribution and the house normally does not go through probate.
Named beneficiary / transfer-on-death mechanism: Some property passes by a recorded beneficiary designation or other transfer document. (Whether a particular transfer-on-death device is valid depends on the deed language and Kentucky law/recording practice.)
Liens and mortgages remain: Even when title transfers outside probate, the mortgage lien usually stays attached to the property until paid or refinanced. The new owner remains liable for the mortgage if the loan was in the decedent’s name but the owner has legal title.

How to confirm whether the house is a probate asset

Check the county deed records (online or at the county clerk) to see how title is listed and whether ownership changed on the deed after the decedent’s death.
Ask whether the decedent had a trust. If the trust owns the property, the trust document controls transfer.
Look for any recorded beneficiary designation or transfer-on-death instrument that names a successor owner.
Search for an opened probate case in the decedent’s county (the probate court docket will show whether an administrator or executor was appointed and whether the house is listed as estate property).

What happens if the house is a nonprobate asset?

If title already passed to you outside of probate (for example, by survivorship or trust), you are the owner. As owner you can:

Continue making mortgage payments or contact the lender to arrange a loan modification, forbearance, or payoff.
Refinance or assume the mortgage if the lender allows it (lenders set the rules for assumption).
Sell the house to pay off the mortgage.

Because you hold title, you do not need the administrator’s permission to act on the property. Keep careful records of payments and communications with the lender.

What happens if the house is a probate asset?

When the house is part of the decedent’s probate estate, Kentucky’s probate process handles estate assets and creditors. The personal representative (executor or administrator) has the legal authority to collect, manage, and pay estate debts and to sell estate property if necessary. Important points:

The mortgage remains a debt of the property. If payments stop and neither the estate nor the personal representative addresses the loan, the lender may start foreclosure on the property.
Occupants or beneficiaries who are not the appointed personal representative do not automatically have authority to act for the estate. If you make payments while the property is an estate asset, you may be making a loan or a gift unless you document another arrangement with the estate or court.
The personal representative has a duty to protect estate property. If that person is absent, unwilling, or slow to act, interested parties can petition the probate court for guidance or for appointment of a representative who will handle the mortgage risk.

Can you make mortgage payments yourself to avoid foreclosure if the administrator isn’t helping?

Yes — you can make payments to the mortgage company even if you are not the personal representative. Lenders generally accept payments from anyone who makes them. But consider these practical and legal issues:

If you are the owner: If title already passed to you (nonprobate), paying the mortgage is straightforward; you are protecting your property and credit.
If the house is still estate property: Paying the mortgage can prevent foreclosure, but you should document the payment and your expectations. Without documentation, the estate’s personal representative or other heirs could treat your payments as a gift, an advance on inheritance, or an informal loan. Get any agreement in writing if possible.
Reimbursement and priority: If you make payments for mortgage or property upkeep on estate property, the court and the personal representative decide whether you will be reimbursed. Kentucky probate courts supervise claims against the estate. To protect yourself, ask the court for permission to make payments or for an order allowing you to manage the property temporarily.
Creditor timelines: The personal representative must notify creditors and follow statutory procedures for creditor claims. Those timelines still apply even if you are making payments to avoid foreclosure.

Practical steps to protect the house and avoid foreclosure in Kentucky

Confirm ownership status quickly: Search county deed records and check whether a probate case is open in the decedent’s county court.
Contact the mortgage servicer immediately: Tell them about the death, provide a death certificate if requested, and ask about hardship options, forbearance, modification, or a short window for loan assumption.
Document any payments you make: Pay by traceable method and get written receipts showing the payment was applied to the mortgage. Ask the servicer to confirm you are authorized to make payments.
Talk to the personal representative or heirs: Coordinate so someone with authority will protect the estate. If the personal representative is not acting, interested parties can ask the probate court to compel action or appoint a new representative.
Consider a court petition: If the house is at immediate risk and there is no active personal representative, you (or other interested parties) can petition the probate court for emergency authority to preserve estate assets (for example, authority to make mortgage payments or to sell the property). The local probate court can explain procedures.
Get legal help before making major commitments: If large sums or a sale are involved, talk to a Kentucky probate or real estate attorney to document arrangements and protect your rights.

Where to look for Kentucky law and local help

For general Kentucky probate rules and forms, see the Kentucky Court of Justice probate information: https://courts.ky.gov/. For the text of Kentucky statutes, the Legislature’s statutes site is here: https://apps.legislature.ky.gov/statutes/. These sources will help you locate statutes and local court rules that govern how estates and creditor claims are handled in Kentucky.

Helpful hints

Before making payments, check county deed records to confirm whether title passed outside probate.
Call the mortgage servicer; many will temporarily halt foreclosure if they know someone is working to preserve the loan.
Get written confirmation from the lender that your payments will be accepted and applied to the loan.
If you expect reimbursement from the estate for payments you make, ask the probate court to approve a repayment plan or to order repayment when funds are available.
Keep a clean paper trail: death certificate, communications with the lender, receipts, and any signed agreements with heirs or the estate representative.
If you cannot find a personal representative or if the representative refuses to act, ask the probate court to appoint someone or for instructions to protect the property.
Talk to a lawyer experienced in Kentucky probate and real estate law if the mortgage, possible foreclosure, or estate distribution is contested or complicated.

Disclaimer

This article explains general legal concepts and practical steps under Kentucky law for educational purposes only. It is not legal advice and does not create an attorney‑client relationship. For advice about a specific matter, contact a licensed attorney in Kentucky.