Short answer: Some houses never become “probate assets” because they pass automatically at death (for example, by joint tenancy, tenancy by the entirety, or because they are held in a living trust). When that happens, the estate administrator typically does not control the property. However, the mortgage lien on the house remains a real-world issue. A person who now holds title can generally make mortgage payments to try to prevent a foreclosure, even if an administrator is handling other estate matters. You should contact the mortgage servicer immediately and get legal advice about clearing title or assuming the loan.

Detailed answer

1. Why a house might not be a probate asset under Massachusetts law

“Probate” is the court process that gathers and distributes a deceased person’s property that does not pass automatically by law or contract. In Massachusetts, property that already transfers automatically at death generally does not enter probate. Common ways a house avoids probate include:

• Joint tenancy with right of survivorship: When two or more people hold title as joint tenants, the survivor(s) automatically acquire the decedent’s share at death. That share generally does not pass through probate.
• Tenancy by the entirety: A form of ownership available to married couples; the surviving spouse usually takes full title automatically.
• Trust ownership: If the decedent held the house in a revocable or irrevocable trust, title may pass to the trust’s beneficiaries per the trust terms without probate.
• Other nonprobate transfers: Certain contractual or statutory devices move assets outside probate (different devices exist for accounts, securities and, in some jurisdictions, for real estate). For an overview of Massachusetts probate law, see Chapter 190B of the Massachusetts General Laws: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B

2. What “not probate” means for control and administration

If the house passed outside probate, the estate’s administrator or personal representative typically does not have authority to sell or manage that property. The person who owns title after the decedent’s death (the surviving joint tenant, trust beneficiary, etc.) holds the rights and responsibilities that come with title.

3. How the mortgage fits in — lien versus borrower obligations

A mortgage creates a lien on the property and a loan contract with the borrower. Two points matter:

• Even if title passes automatically, the mortgage lien generally remains attached to the property until the lender releases it by payoff or satisfaction. The lender can enforce its lien if payments are not made.
• The person who inherits title may not automatically be personally liable for the loan contract unless they expressly assume it or are otherwise legally obligated. But lenders can still pursue foreclosure on the property to enforce the mortgage lien.

Massachusetts foreclosure procedures and rights of mortgagees are governed by state law. For rules that affect foreclosure remedies and the mortgagee’s powers, see Chapter 183 of the Massachusetts General Laws (for provisions relating to mortgages and powers of sale): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter183

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

Yes. Practical and legal points to keep in mind:

• You can pay the mortgage: The person holding title or anyone with access to the decedent’s bank account (if funds remain and are properly authorized) can make the mortgage payments. Continuing payments is one of the most effective ways to prevent a lender from starting or completing foreclosure.
• Notify the mortgage servicer: Call the lender or loan servicer right away. Provide a copy of the death certificate and any documents showing you hold title (deed, trust paperwork, or other proof). Ask what paperwork they need to accept payments and whether they will allow a direct payment schedule, a loan assumption, or a loan modification.
• Mortgage requirements: Some mortgage contracts contain acceleration or due‑on‑sale clauses. A lender could require payoff, but many lenders will accept payments or offer loss‑mitigation if the new owner acts promptly and communicates. Do not assume the lender will automatically foreclose without notice; Massachusetts foreclosure requires specific legal steps before sale.
• If title is unclear: If you do not yet hold clear title (for example, the deed has not been recorded or the property is still part of an unsettled estate), the lender may want a court order or evidence of authority to accept payment. In that situation, consult the Probate and Family Court handling the estate or get legal counsel.

5. Practical next steps (what to do right now)

1. Gather documents: death certificate, current deed, mortgage statement, homeowners insurance and property tax bills, the decedent’s will or trust documents (if any), and recent bank statements.
2. Contact the mortgage servicer immediately: explain the death, request the current payoff or payment information, and ask how to make payments while title issues are resolved.
3. Keep paying if you can: making timely payments — even while you sort out title — is the best way to prevent foreclosure. Document every payment and get receipts.
4. Talk to Probate & Family Court if needed: if the loan servicer requires proof of authority, the Probate Court can issue letters of administration or other documentation for an estate representative. Massachusetts Probate & Family Court info: https://www.mass.gov/orgs/probate-and-family-court
5. Get legal help if foreclosure is imminent: if you receive a foreclosure notice or the sale process begins, consult an attorney right away and consider foreclosure prevention programs on Mass.gov: https://www.mass.gov/foreclosure-help

Helpful hints

• Do not ignore foreclosure notices. Timely communication with the servicer can open options like temporary forbearance, modification, or short sale.
• If you pay from estate funds, be careful: only estate funds or funds properly authorized by the court should be used when an estate is open. Misuse of estate property can cause problems. Talk to the estate administrator or an attorney.
• If the property is owned by multiple people (tenancy in common), the decedent’s share may require probate. In that case, the estate administrator may need to act to preserve the property.
• Keep full records of all payments, calls, names and dates. Get confirmation in writing from the servicer when possible.
• Consider mediation or housing counseling. Nonprofit housing counselors approved by the U.S. Department of Housing and Urban Development can help with options and negotiation strategies.