How an Inherited House May Be Non‑Probate and Whether You Can Pay the Mortgage Yourself (Maine)

Short answer: A house is not a probate asset when it passes automatically to someone other than the decedent’s probate estate (for example, by joint tenancy, a beneficiary designation, or a trust). If the house is non‑probate and you become the owner, you may continue making mortgage payments to avoid foreclosure. If the house is still part of the probate estate, the personal representative generally controls estate assets and creditors, and paying the mortgage without the administrator’s cooperation is possible but involves legal and practical risks. This article explains how to tell which situation applies under Maine practice and gives practical steps you can take now.

Disclaimer

This is general information, not legal advice. I am not a lawyer. For advice about your particular situation, consult a Maine attorney experienced in probate, real estate, or foreclosure law.

1. What makes a house a probate asset in Maine?

A property is usually a probate asset when the decedent owned it solely in their name and did not leave a valid legal mechanism that transfers title automatically at death. In that case, title to the house becomes part of the decedent’s estate and must be handled through probate administration before legal title can pass to heirs.

Common situations where real property is a probate asset:

• The deed names only the decedent (no joint owner and no beneficiary deed).
• The property is titled in the decedent’s individual name and there is no trust that holds title.
• There is no valid transfer-on-death instruction or beneficiary recorded that governs the property.

Situations where the property typically bypasses probate and is therefore not a probate asset:

• Joint tenancy with right of survivorship (title held jointly so title passes immediately to the surviving joint owner(s) at death).
• Property held in a living trust where the trust controls who gets the house.
• Property with a valid beneficiary designation or transfer‑on‑death mechanism recognized by state law (if applicable and properly recorded).
• Proceeds from life insurance or retirement accounts payable to a named beneficiary (these are not estate real property, though they can affect estate liquidity).

To determine whether the house is a probate asset, start by checking the deed recorded at the county registry of deeds. Look for wording that indicates joint tenancy, survivorship, or a recorded trust. If the deed names only the decedent, the property is likely a probate asset.

For general information about Maine probate law and how estates are administered, see the Maine Probate Courts pages: https://www.courts.maine.gov/court_system/probate/. You can also search Maine statutes at the Maine Legislature site: https://legislature.maine.gov/statutes/.

2. Who is responsible for the mortgage after someone dies?

The mortgage is a contract between the borrower (the person who signed the loan) and the lender. Important points:

• If the mortgage remains in the decedent’s name only and title passes to heirs through probate, the lender can look to the property as security and may begin foreclosure if payments stop. The estate (and therefore the personal representative/administrator) typically has the legal authority to pay debts and protect assets during probate.
• If the property passed outside probate (for example, to a joint owner or a trust beneficiary), the new owner becomes responsible for payments. Lenders can foreclose if payments lapse, even if the non-borrowing heir is trying to save the house.
• Even if you are an heir in possession, the lender has priority to enforce the mortgage unless you negotiate otherwise.

3. Can you make mortgage payments yourself to avoid foreclosure without the administrator’s help?

Short answer: Yes, often you can make payments to avoid foreclosure, but whether you should do so without the administrator’s involvement depends on whether you have legal title and on practical legal risks.

Consider these two scenarios:

Scenario A — The house bypassed probate and you are the owner

• If title passed directly to you (for example, you were a joint tenant or named beneficiary), you are the legal owner. You can make payments and negotiate with the lender. You should notify the lender about the change in ownership, provide any required documentation (death certificate, recorded deed or trust paperwork), and ask about options (loan assumption, loan modification, forbearance).
• Keep written records of every payment and any agreement with the lender.

Scenario B — The house is in the probate estate and you are an heir but not the personal representative

• Legally, the personal representative (executor/administrator) controls estate assets and decisions. If estate funds exist, the representative should use them to keep estate property insured and maintained and to pay legitimate debts, which can include mortgage payments to protect the asset.
• If no representative is appointed, heirs sometimes act to preserve property (pay taxes, mortgage, insurance). You can make mortgage payments voluntarily to avoid immediate foreclosure, but doing so creates potential complications: if estate liabilities exceed assets, courts might require estate accounting and could require reimbursement to the estate for payments made by one heir, or they may treat voluntary payments in a way that affects how the estate is distributed.
• Some practical rules of thumb: get written consent from the other heirs (if possible); get the lender to accept your payments and to send confirmations to your address; keep all receipts; consider a written agreement among heirs about reimbursement or credit toward inheritance.

4. Practical steps to avoid foreclosure now (Maine-oriented)

1. Confirm ownership and mortgage status: obtain a copy of the recorded deed from the county registry of deeds and request a mortgage payoff or payment history from the lender.
2. Contact the lender early: explain the borrower’s death, provide the death certificate, and ask about loss mitigation, excluding foreclosure alternatives such as forbearance, loan modification, short sale, or deed-in-lieu.
3. If the property is in probate, contact the probate court or file for appointment of a personal representative. The court can give the representative authority to act on behalf of the estate. See Maine Probate Courts resources: https://www.courts.maine.gov/court_system/probate/.
4. If you pay the mortgage out of your own funds: get everything in writing, keep detailed records, and consider a signed agreement with other heirs. Consider seeking a court order authorizing the payment or a temporary injunction in contentious situations.
5. Consider a short‑term protective step: maintain insurance and taxes on the property to prevent additional liens or loss.
6. Talk to a Maine attorney if the lender won’t cooperate, if heirs disagree, or if you face imminent foreclosure. An attorney can advise about small‑estate procedures and emergency motions in probate court to protect the asset.

5. Timing and foreclosure basics

Maine foreclosure procedures vary by lender and by facts; lenders typically must follow the mortgage contract and state law. If payments stop, lenders will send notices and may begin foreclosure after the contract’s default remedies are triggered. Acting promptly—contacting the lender or seeking appointment of a representative—gives you the best chance to preserve the property.

6. Common questions heirs ask

• If I pay the mortgage, do I get title? No. Paying the mortgage does not automatically transfer legal title unless the owner or the court signs a transfer. Consider a written reimbursement agreement with heirs or ask the court to approve a sale or transfer.
• Can the lender accelerate the loan because of death? Not simply because of death; acceleration depends on the mortgage terms. Some mortgages have clauses triggered by default or other contract terms—not merely death.
• Can I be forced to pay the mortgage if I inherit a house? If you inherit the house and you accept title, you become responsible as owner. If you decline title (renounce inheritance) you generally do not take on responsibility, but foreclosure and creditor claims will proceed against the estate or property unless you take steps to protect the asset.

Helpful Hints

• Immediately obtain a certified copy of the death certificate; lenders and courts will require it.
• Request a mortgage payoff or payment history from the lender so you know how far behind the account is and whether fees or acceleration occurred.
• Check the recorded deed at the county registry of deeds to learn if the property passed outside probate.
• Keep written records of every payment, communication, and agreement with the lender or other heirs.
• If multiple heirs want the house, sign a written agreement about who will pay, who gets credit, and how the house will be distributed or sold—ideally with legal help.
• If foreclosure is imminent, seek a Maine probate or real estate attorney quickly; emergency probate relief can sometimes be obtained to prevent immediate loss.
• Use Maine courts and statute resources for local rules: Maine Probate Courts—https://www.courts.maine.gov/court_system/probate/; Maine statutes search—https://legislature.maine.gov/statutes/.

Next steps: Start by checking the deed and contacting the mortgage lender. If title is in your name or the property passed outside probate, you can generally negotiate directly. If the property is in probate, consider petitioning the probate court to appoint a personal representative or getting legal advice about paying to protect the property.

If you want, tell me whether the deed lists joint owners, whether a trust exists, or whether the lender has already sent foreclosure notices, and I can suggest more specific next steps you can take in Maine.