Detailed Answer
Short answer: A house you ‘‘inherit’’ may not be a probate asset in New Hampshire if it already passed automatically to someone else when the owner died (for example, because of joint ownership, a trust, or a beneficiary designation). Regardless of whether the house goes through probate, the mortgage does not automatically disappear. You (or another person with an ownership or contractual interest) can often make mortgage payments to try to avoid foreclosure, but lenders have rights and may require documentation, qualification, or full payoff before they will accept payments or allow an assumption.
How a house can avoid probate in New Hampshire
Probate is the court supervision process for distributing a deceased person’s assets that are owned in their name alone. In New Hampshire, property will usually avoid probate if title or legal ownership already creates a direct transfer on death. Common examples include:
- Joint ownership with right of survivorship: If the decedent owned the house as joint tenants (or as tenants by the entirety with a spouse), ownership automatically passes to the surviving joint owner at death. That transfer occurs outside probate.
- Trust ownership: If the house was owned by a living trust, the trustee follows the trust’s terms and transfers the property without probate.
- Assets with beneficiary designations: Bank accounts, retirement plans, and some other assets pass to named beneficiaries and therefore bypass probate.
- Payable-on-death / transfer-on-death arrangements: Certain accounts or instruments may be set up to transfer at death directly to a named beneficiary.
If title already names a survivor or a trust as owner, the county deed records will show that. You can check the county Registry of Deeds for the property to see how title is held.
Why title matters for probate and for the mortgage
Ownership on the deed determines whether the property is part of the probate estate. But the mortgage is a separate contract. The lender has a lien against the property and a contractual right to be repaid. Even if the house passes outside probate, the mortgage lien stays attached to the property. If mortgage payments stop, the lender can begin loss-mitigation steps that could lead to foreclosure.
Can you make mortgage payments without the administrator’s help?
Yes — practically speaking, someone (an heir, beneficiary, surviving joint owner, trustee, or the estate’s personal representative/administrator) can make payments on the mortgage to prevent default and foreclosure. But consider these points:
- Who the lender recognizes: The lender’s account will be in the name of the borrower (the deceased). Lenders typically accept payments from third parties, but they may want documentation showing why the person is authorized to act or to inspect title records.
- Legal authority to manage the property: If the house is still in the decedent’s name and will be transferred by probate, the personal representative (also called administrator or executor) has the legal authority to manage estate property. If you are not the personal representative, you can still make payments, but you won’t be able to sell or refinance the property or sign an assumption agreement unless given authority.
- Assumption or modification: To remove the deceased borrower and place the mortgage into the heir’s or beneficiary’s name (or to assume the loan), most lenders require a formal assumption process and qualification (proof of income, credit check). Lenders are not required to allow an assumption unless the mortgage contract or federal law gives that right.
- Payment acceptance and foreclosure timeline: Some servicers will accept voluntary payments from an heir or occupant while loss-mitigation is reviewed; others may require the borrower’s estate representative to handle the account. If the loan is already in default, the lender may require cure of arrears or a reinstatement amount and could proceed toward foreclosure in accordance with New Hampshire law.
Practical steps to avoid foreclosure
- Check title and mortgage records: Obtain a copy of the deed at the county Registry of Deeds and review the mortgage/loan statement to see who is on title and who holds the loan.
- Contact the mortgage servicer immediately: Tell them the borrower has died, provide a death certificate if requested, and ask about current status, arrears, and loss-mitigation options (forbearance, reinstatement, repayment plans, loan modification, or assumption).
- Offer payments in writing and keep records: If you plan to make payments, confirm in writing with the servicer how payments will be applied and whether acceptance affects foreclosure timelines. Keep receipts and send payments traceably (check, bank transfer).
- Consider getting legal authority if needed: If the house is in the decedent’s name and you expect to manage, sell, or refinance the property, consult with whoever is/should be the estate’s personal representative. If needed, apply to the probate division to be appointed administrator or request that the appointed representative cooperate.
- Explore alternatives: If you intend to keep the house, ask the lender about assuming the loan or refinancing. If you do not want the house, discuss short sale or deed-in-lieu options with the servicer.
Where to find official New Hampshire resources
- New Hampshire Judicial Branch — Probate information and forms: https://www.courts.state.nh.us/court_procedure/probate/
- New Hampshire County Registries of Deeds (look up the county where the property is located via the Secretary of State or county websites)
When to talk to an attorney
If the lender starts foreclosure steps, if there is a dispute among heirs, if you need to be appointed administrator, or if you want to assume or refinance the loan, speak with a New Hampshire attorney who handles probate and real estate lending. An attorney can help secure authority to act, negotiate with the servicer, and explain deadlines and court procedures that affect your rights.
Disclaimer: This information explains general points about New Hampshire probate and mortgage issues. It is educational only and not legal advice. For advice about a specific situation, consult a licensed New Hampshire attorney.
Helpful Hints
- Start by obtaining the death certificate and the current mortgage statement — lenders will ask for these.
- Look at the deed in the county Registry of Deeds to confirm how title is held before assuming anything about probate.
- Contact the mortgage servicer within days of discovering a missed payment to avoid acceleration and foreclosure steps.
- Keep detailed records of any payments you make and get written confirmation from the servicer about how payments will be credited.
- If you plan to keep the home, ask the servicer about loan assumption, modification, or refinancing as early as possible.
- If heirs disagree about the property, seek probate appointment quickly so a representative can act with legal authority.
- When in doubt, get a brief consultation with a New Hampshire probate or real estate attorney — often a short meeting will clarify authority and options.