Detailed answer — why an inherited house may not be part of probate and who must pay the mortgage

Not all property owned by a deceased person becomes part of that person’s probate estate. In New York, some forms of ownership and transfer cause real property to pass immediately to another person outside of the probate process. Whether the house is a probate asset depends on how title was held and whether a separate legal device (for example, a trust or transfer-on-death designation) controls the transfer.

Common ways a house passes outside probate

• Joint tenancy with right of survivorship: If the decedent and another person owned the house as joint tenants with right of survivorship, the survivor becomes sole owner automatically on death. That transfer occurs by operation of law and does not require probate.
• Tenancy by the entirety: For married couples, property held as tenancy by the entirety passes to the surviving spouse by operation of law.
• Trust ownership: If the house was titled in the name of a living trust, the successor trustee follows the trust document to transfer title. That process usually bypasses probate.
• Transfer-on-death or beneficiary designation: If the state-recognized transfer-on-death (TOD) device or a beneficiary deed applies and was properly recorded, the named beneficiary receives the property outside probate.
• Payable-on-death or designated beneficiary for other assets: While not directly a deed to real property, many assets (bank accounts, retirement plans, life insurance) pass by beneficiary designation and do not enter probate; the house can similarly avoid probate depending on how title is held.

New York law distinguishes assets that pass by operation of law or by contract from assets that must be administered in Surrogate’s Court. For general statutory reference, see the New York Estates, Powers & Trusts Law (EPTL) and the Surrogate’s Court procedural rules: https://www.nysenate.gov/legislation/laws/EPT and https://www.nysenate.gov/legislation/laws/SCPA.

How mortgage obligations interact with transfers outside probate

Even if a house passes to a beneficiary outside of probate, the mortgage lien typically stays attached to the property. That means:

• The lender’s security interest (the mortgage) generally remains enforceable against the property itself, regardless of who now holds title.
• Creditors of the deceased may seek payment from the estate. But if the estate no longer owns the house because title transferred outside probate, the primary issue for the beneficiary is the mortgage lien on the property.
• If payments are missed, the mortgage holder can pursue regular remedies (including foreclosure under New York law) against the property owner or the property, depending on circumstances and the loan documents. See the Real Property Actions and Proceedings Law (RPAPL) for foreclosure procedures: https://www.nysenate.gov/legislation/laws/RPAPL.

Can you make mortgage payments without the administrator’s involvement?

Yes — often you can and should make mortgage payments to avoid foreclosure even if there is an administrator or if the property is passing outside probate. Practical points:

• If you already hold title (for example, you were a joint tenant with right of survivorship or a named beneficiary under a trust or TOD), you can make payments and contact the lender to confirm your status and arrange payment. You are the property owner and therefore responsible for keeping the mortgage current.
• If title has not yet been transferred but you have taken possession or intend to keep the house, you may still make payments. Lenders generally accept payments from someone other than the borrower (forbearances and loan modifications may still require documentation), but you should get written confirmation from the lender that payments were accepted and will be applied to the loan to avoid future disputes.
• If the house is subject to probate (estate administration is open and an executor/administrator has been appointed), the executor/administrator is the person with legal authority to deal with estate property. However, making voluntary payments on the mortgage does not usually require the administrator’s permission. That said, if title remains in the decedent’s name and the estate is still the legal owner, there may be procedural or accounting implications for the estate — the executor should be informed and payments documented.
• Some mortgages contain acceleration or due-on-sale clauses. A lender may demand full payment if title transfers, but federal law and lender practices affect how strictly those clauses are enforced. Contacting the lender early is vital.

Practical steps to avoid foreclosure

1. Obtain a certified copy of the death certificate and a copy of the deed. Confirm how title is held (joint tenancy, trust, sole ownership, etc.).
2. Contact the mortgage lender immediately. Provide a death certificate and explain your status (owner, beneficiary, heir, potential administrator). Ask about loss-mitigation options, temporary forbearance, or assumption/transfer requirements.
3. If you are not yet on title but plan to keep the house, ask the lender what documentation they require to accept payments from you and whether they will consider loan assumption or modification.
4. If the property is in a trust or has a beneficiary designation, follow the trust instructions or recorded beneficiary form to obtain a new deed or proof of ownership.
5. If foreclosure proceedings are imminent, you may need to act quickly to request a stay or negotiate with the lender. Consult counsel experienced in New York foreclosure defense and probate matters.

When to consider opening a probate estate or seeking court help

Open probate if the house is a probate asset (sole ownership by the decedent with no survivorship or trust). The executor or administrator will then be authorized to handle the mortgage, estate assets, and creditor claims under Surrogate’s Court rules. If title is unclear, you may need a court order to clear title or to sell the property. The Surrogate’s Court in the county where the decedent lived handles probate and administration. See the NY Unified Court System Surrogate’s Court pages for local procedures: https://www.nycourts.gov/courts/surrogates/.

Helpful hints

• Act quickly. Lenders move on missed payments, and foreclosure timelines can proceed even during probate.
• Get written confirmation from the lender when you make payments and keep detailed records (who you spoke with, dates, amounts, reference numbers).
• Verify how title is held by ordering a copy of the deed from the county clerk’s office or online land records.
• If the property is in a trust, ask the trustee for a copy of the trust and instructions on transfer steps; trusts often avoid probate.
• Ask the lender about a loan assumption or refinance in your name if you plan to keep the property — this can remove future uncertainty about payments and foreclosure risk.
• If you are unsure whether the house is a probate asset, consult a New York probate or real estate attorney to review deed records, the mortgage, and relevant documents.
• Remember property taxes and homeowner’s insurance must also be kept current to avoid separate enforcement actions.

Where to get help

Contact the New York Surrogate’s Court in the county where the decedent lived for probate forms and procedures: https://www.nycourts.gov/courts/surrogates/. For statutory background on estate and probate law, see the New York Estates, Powers & Trusts Law and the Surrogate’s Court Procedure Act: https://www.nysenate.gov/legislation/laws/EPT and https://www.nysenate.gov/legislation/laws/SCPA. For foreclosure procedures, see the Real Property Actions and Proceedings Law (RPAPL): https://www.nysenate.gov/legislation/laws/RPAPL.

Disclaimer

This article is for general informational purposes only and does not constitute legal advice. It is not a substitute for consulting an attorney licensed in New York who can review your specific facts and documents.