Detailed Answer
Basic concept: when someone dies in Louisiana, their property may or may not be part of the deceased person’s succession (what many states call probate). Whether a house is a succession asset depends on how title was held and whether some other legal mechanism transferred the house automatically at death.
Why an inherited house might NOT be a succession (probate) asset
A house may not be part of the succession for these common reasons:
- Title named a surviving co‑owner with rights that pass automatically. If the house was owned as joint owners with right of survivorship or with a recorded survivorship clause, ownership can pass by operation of law to the surviving owner without opening a succession.
- The property was placed in a trust. Real estate held in a properly funded revocable or irrevocable trust typically transfers to the trust beneficiaries outside of succession.
- There was a beneficiary designation or contract right. Certain contracts or instruments (for example, some transfer-on-death arrangements or contractual survivorships) can move property outside the succession process.
- Some non‑probate statutory transfers or exemptions apply. Certain statutory rights (homestead protection for a surviving spouse, life insurance or retirement plan beneficiary designations, etc.) operate outside succession.
To confirm whether the house is a succession asset you need to check the recorded title (the deed), any trust documents, beneficiary designations, and how the deed was signed. If the deed names the survivor or if a recorded trust owns the property, the house likely is not part of the succession.
How mortgages behave when the owner dies
Mortgages are security interests attached to the property. Even if ownership passes outside succession, the mortgage follows the property. The lender retains the right to collect payments and, if payments are not made, may pursue foreclosure against the property owner (whoever holds title). In short:
- If title passes automatically to a joint owner, that person is generally responsible for the loan unless the lender agrees otherwise.
- If title passes to heirs by succession or small succession, the mortgage remains attached and can be enforced against the property.
- Passing outside succession does not erase the debt; it only changes who holds title.
Can you make mortgage payments to avoid foreclosure without the administrator?
Short answer: Yes — anyone can make payments to the lender, and doing so often helps prevent foreclosure — but there are practical and legal issues to know.
What you can and should do:
- Contact the lender immediately. Explain the borrower’s death, identify yourself, and ask what documents the lender needs to accept payments and to stop any foreclosure steps. Lenders usually need a death certificate and proof of your status or interest in the property (e.g., recorded deed, trustee paperwork, or an affidavit of heir).
- Make payments and keep proof. If you make a payment, get a written receipt or a canceled check and keep an unbroken payment record. Courts and lenders weigh continuous payments when deciding disputes about possession or equitable relief.
- Get permission, if required by the lender. Some loan documents require the lender to deal only with a legally appointed representative (an executor or administrator). The lender can refuse to accept payments from an unrelated third party or insist on documentation first.
- Understand your risk if you are not on title. Making payments does not automatically give you ownership or legal rights to the house. If you are not an heir or named owner, you could lose money if ownership disputes later arise.
- If you are an heir or transferee, consider filing a small succession or obtaining an appointment as administrator. A recognized representative clears title, gives legal authority to deal with the lender, and protects buyers or refinancing later.
Practical scenarios (hypothetical examples)
Example 1 — Joint owner: Marie was listed on the deed with her sibling with a survivorship clause. The sibling dies. The house passed automatically to Marie outside of succession, but the mortgage remains. Marie should contact the lender and continue payments. The lender can foreclose if she stops paying.
Example 2 — Heir who hasn’t been appointed: Alan is an heir but an administrator has not been appointed yet. He starts paying monthly to prevent foreclosure. The lender may accept payments, but may still insist that someone be appointed as administrator to make permanent arrangements, modify the loan, or transfer title.
Next legal steps and remedies in Louisiana
– If the estate qualifies and you want to avoid formal administration, Louisiana provides simplified or “small succession” procedures that allow heirs to transfer title without a full probate process in many cases. (Search your state resources for “small succession” procedures.)
– If a foreclosure is threatened, promptly ask the lender about temporary forbearance, loan modification, reinstatement, or a payoff plan.
– If the lender starts foreclosure, you may need a lawyer to assert defenses or negotiate a resolution. Legal counsel can file pleadings or seek a stay if appropriate.
For statutory language and to learn more about Louisiana’s succession laws and procedures, see the Louisiana Legislature site: https://legis.la.gov/. You can search that site for terms such as “succession,” “small succession,” and “mortgage foreclosure” to find the current statutes and procedural rules.
Bottom line: A house may not be a probate/succession asset if title or other documents transfer it automatically at death, but the mortgage remains attached. You can make payments to avoid foreclosure, and doing so is often wise. However, to secure title and protect your rights long‑term, you should either obtain legal authority (appointment as administrator or use of small succession procedures) or get clear written acceptance from the lender.
Helpful Hints
- Get the death certificate and a copy of the recorded deed immediately.
- Call the mortgage company, give the loan number, and ask what documentation they need to accept payments after the borrower’s death.
- Make payments by traceable means only (check, bank transfer) and keep receipts or canceled checks.
- Gather documents: deed, mortgage note, last mortgage statement, homeowners insurance policy, and any trust or beneficiary documents.
- If you are an heir, ask about the simplified small succession process to clear title. Search the Louisiana Legislature site for “small succession” for the current procedure.
- Consider a limited, inexpensive consultation with a Louisiana attorney experienced in successions if the lender refuses payments or if foreclosure starts.
- If you plan to make payments and later seek reimbursement from the estate or from co‑owners, get written agreements where possible, or submit receipts to the administrator once one is appointed.
Important disclaimer: This information is general education about Louisiana law and is not legal advice. Every situation is different. For advice tailored to your facts and to protect your rights, consult a licensed Louisiana attorney.