Can I sell my mother’s house during the probate process if there’s still a mortgage on it?

Short answer: Possibly — but only if you are the court-appointed personal representative (executor/administrator) with the legal authority to sell estate property, and you follow Nevada probate rules and the lender’s payoff requirements. The mortgage does not automatically prevent a sale, but it does affect how the sale proceeds are applied, whether a lender must be paid off at closing, and whether you need a court order before selling.

Disclaimer

This article is educational only and does not constitute legal advice. For guidance tailored to your facts, consult a Nevada probate attorney.

Detailed answer — what you need to know under Nevada law

1. Who can sell the house during probate?

Only the person with legal authority over the estate can sign to sell real estate. In Nevada that is typically the personal representative (sometimes called the executor if named in a will, or the administrator if appointed when there is no will). If no one has been appointed yet, the property cannot be legally sold by family members acting on their own.

When a will exists, it may grant the personal representative specific powers to sell real property. If the will grants a power of sale (sometimes called a general power to manage and sell estate property), the personal representative may be able to sell without additional court confirmation. If the will does not grant that power, or if there is no will, the personal representative usually must petition the probate court for authority to sell real property.

For Nevada statutory overview of estate administration and the court’s role, see the Nevada Revised Statutes on estate administration: https://www.leg.state.nv.us/NRS/. Nevada Courts also provides practical probate information: https://nvcourts.gov/self-help/probate/.

2. How does the mortgage affect a sale?

A mortgage is a lien on the property. That means the lender has a right to be paid out of sale proceeds before heirs receive money. Typical outcomes:

• If the sale price covers the mortgage payoff, the lender will receive its payoff at closing and the remaining proceeds will go to the estate for payment of other debts and distribution to beneficiaries.
• If the sale price does not cover the mortgage, the sale may require lender approval (a short sale) or the lender may insist on foreclosure if payments are in default. In a short sale, the lender can accept less than full payoff but must agree in writing.
• If a buyer is willing to assume or take subject to the mortgage, the lender usually must approve or underwrite the assumption. Many mortgages are not assumable without lender consent.

3. Do you need court permission to sell?

It depends:

• If the personal representative’s authority comes from a will that expressly grants the power to sell, Nevada law and local probate practice may allow sale without a court confirmation hearing. Still, the personal representative must follow notice and accounting requirements.
• If no express power exists, or if the personal representative prefers certainty, the representative can file a petition with the probate court requesting an order authorizing sale of the real property. The court will typically require notice to heirs and creditors and may hold a hearing before issuing an order.

Filing for court authorization avoids later challenges from heirs or creditors and clears title for the buyer. Nevada’s probate rules and forms (available through the Nevada Courts website) explain the process and required notices: https://nvcourts.gov/self-help/probate/.

4. What steps are required to sell the house while in probate?

1. Confirm you are the legally appointed personal representative. If not appointed, petition the probate court to be appointed.
2. Review the will for any sale powers. If the will grants a power of sale, document that authority and follow any statutory notice or filing requirements.
3. Obtain a mortgage payoff statement from the lender. The payoff figure must be current at closing.
4. If required, petition the court for an order authorizing the sale (file petition, provide required notices, attend hearing, get signed order). The court order is typically recorded or provided to escrow.
5. List the property for sale. Disclose the estate’s status to buyers and agents. Many buyers and title companies want clear court authorization or evidence of the personal representative’s authority.
6. Close escrow and pay off the mortgage and other valid claims from sale proceeds. Follow Nevada probate rules when distributing remaining funds to creditors and beneficiaries.

5. What happens if the mortgage is unpaid or the estate lacks funds?

If mortgage payments stop, the lender can start foreclosure. Foreclosure can proceed even when a property is in probate, although foreclosure timelines and the estate’s ability to cure depend on the mortgage terms and case facts. If the estate lacks funds to pay off the mortgage, options include:

• Sell the property during probate and use sale proceeds to pay the mortgage (if sale net proceeds suffice).
• Negotiate a short sale with the lender.
• Have an heir or buyer pay off or assume the mortgage (with lender approval).
• Allow the lender to foreclose (not ideal if heirs want value preserved).

6. Title and closing concerns

Buyers and title insurers want assurance the seller can transfer marketable title. A recorded court order authorizing the sale or a recorded deed executed by the personal representative after appointment generally satisfies title companies. If the sale occurs without required court authority, the title company may need a court confirmation after sale to insure title.

Helpful hints

• Do not attempt to sell the property unless you are the appointed personal representative or you have explicit court authorization.
• Get the lender’s current payoff statement early. Payoffs include principal, accrued interest, and lender fees.
• If you expect a short sale, get the lender’s written approval before entering a purchase agreement. Short sales can take months to approve.
• Record and keep a copy of any court order authorizing sale. Provide it to escrow and the title company.
• Keep detailed records of all estate transactions and communications with creditors and buyers. The personal representative has a fiduciary duty to the estate and beneficiaries.
• If the property has a reverse mortgage, HUD/FHA rules and special lender procedures may apply. Contact the lender immediately.
• Ask the probate court clerk or check Nevada Courts self-help resources for local forms and required notices: https://nvcourts.gov/self-help/probate/.
• Consult a Nevada probate attorney early. Probate sales involve deadlines, creditor issues, and title questions that vary by county and by fact pattern.

When to hire a lawyer

Hire a probate attorney if any of the following are true:

• You are not sure whether the will grants an express power to sell.
• The mortgage is underwater and you need to negotiate a short sale.
• Heirs disagree about selling or distribution.
• There are potential creditor claims or tax issues.
• The lender threatens foreclosure while probate is pending.

An attorney can prepare the necessary court filings (petition to sell, notices, and proposed order), help negotiate with the mortgage holder, and ensure the sale clears title.

Bottom line

You can often sell a deceased person’s house during probate in Nevada, even if a mortgage remains, but you must have legal authority (as the personal representative or by court order) and you must handle the lender’s payoff. Follow Nevada probate procedures, provide required notices, and get any needed court authorization to ensure a smooth sale and clear title at closing.