How to take over a deceased parent’s mortgage in New York — a clear step-by-step FAQ-style guide
This article explains, in plain language, what typically must happen to take responsibility for a mortgage after a homeowner dies in New York. It uses general, hypothetical facts and practical steps. This is educational material only and not legal advice.
Short answer (summary)
If your father owned the home and the mortgage remains unpaid, you must (1) confirm how title to the home passes (will, probate, joint ownership), (2) notify and speak with the mortgage lender, and then (3) either be approved to assume the loan, refinance it in your name, have the estate pay it off, or sell the home. You cannot simply move in and erase mortgage liability unless the lender approves an assumption or you refinance. Expect probate or court paperwork if title does not already pass to you.
Detailed answer — what to do, step by step
1. Identify ownership and whether title passes automatically
First, find the deed and any will. If the property was held jointly with right of survivorship, it may pass automatically to the surviving joint owner and you will likely avoid probate. If there is a payable-on-death or transfer-on-death vehicle that covers real estate (rare and fact-specific in New York), the house might pass outside probate. Otherwise, the home will be part of the decedent’s estate and the person named as executor (or an administrator appointed by the Surrogate’s Court) must handle transfer of title. New York’s estate laws and Surrogate’s Court procedures govern this process. See New York’s Estates, Powers & Trusts Law (EPTL) and Surrogate’s Court resources for more information: https://www.nysenate.gov/legislation/laws/EPTL and https://www.nycourts.gov/courts/surrogates/.
2. Locate the mortgage documents and contact the lender quickly
Find the mortgage note and mortgage (deed of trust is not used in New York) or the loan account number. Call the lender’s servicing department to inform them of the borrower’s death, ask for the account status, and request the lender’s instructions for transferring the loan or making payments. Lenders will explain whether the loan is assumable, what forms they need, and whether they will require you to qualify financially.
3. Understand the difference between “assuming” the mortgage and taking the property “subject to” the mortgage
- Assumption: The lender formally approves you to take the mortgage and adds you to the loan (often releasing the estate or deceased borrower’s estate from future liability only if the lender issues a release). Most lenders treat assumptions like a new loan application and require credit qualifying and paperwork.
- Subject to: You accept title but the loan stays in the deceased borrower’s name. You make payments, but the lender still holds the deceased borrower (or the borrower’s estate) liable and could pursue foreclosure or collection if payments stop. The lender can also require full payment under certain conditions.
4. Check for “due-on-sale” or acceleration clauses and applicable protections
Many mortgages have a due-on-sale clause (lender can demand full repayment upon transfer of title). However, federal law and consumer protections can limit a lender’s ability to accelerate a mortgage when a homeowner dies and the property passes to a relative who occupied the property as their principal residence. Practical outcome: a lender often will not enforce acceleration against a close relative who inherits the home, but the lender can still require credit approval if you seek a formal assumption or refinance. For general federal consumer guidance on mortgages after a borrower dies, see the Consumer Financial Protection Bureau: https://www.consumerfinance.gov/ask-cfpb/what-happens-to-a-mortgage-if-the-borrower-dies-en-1888/.
5. Probate or estate administration likely is required to transfer title
If the deed is only in your father’s name and there is a will, the executor named in the will must present the will to the Surrogate’s Court and obtain authority (letters testamentary) to manage estate property and transfer title. If there is no will, an administrator is appointed. The executor/administrator signs deeds and can negotiate with the lender, sell the house, or pay the mortgage from estate funds. See the Surrogate’s Court information: https://www.nycourts.gov/courts/surrogates/ and the Surrogate’s Court Procedure Act: https://www.nysenate.gov/legislation/laws/SCPA.
6. If you want to keep the house: assumption vs refinance
- If the lender allows an assumption, follow the lender’s application process and get any lender release in writing.
- If you refinance, you pay off the father’s mortgage with a new loan in your name, which removes estate liability and gives you a clean title encumbrance.
- Either path usually requires a credit check, income verification, and closing paperwork.
7. If you can’t or don’t want to assume/refinance
Alternatives include selling the property (proceeds pay the mortgage and other estate debts), paying the mortgage from estate assets, or arranging a short sale with lender approval if the mortgage balance exceeds market value. If mortgage payments stop, the lender may begin foreclosure under New York foreclosure rules: see New York Real Property Actions and Proceedings Law (RPAPL) for foreclosure procedures: https://www.nysenate.gov/legislation/laws/RPAPL.
8. Practical documents and authorities you will likely need
- Death certificate
- Original mortgage and payment history
- Deed to the property
- Will (if any) and letters testamentary or letters of administration from Surrogate’s Court
- Photo ID and proof of income, if you apply to assume or refinance
9. Typical timeline and costs
Probate/estate administration in New York can take months. The lender process for assumption or refinance usually takes weeks to months, depending on underwriting. Expect costs for probate filings, attorney fees, title search/insurance, recording fees, and loan closing costs if you refinance.
When you should get a lawyer
Talk to an estate or real estate attorney if the title is unclear, if the estate lacks funds to pay the mortgage, if the lender refuses an assumption, or if interested parties disagree. An attorney can obtain letters testamentary/administration, prepare deeds, negotiate with the lender, and protect your rights in Surrogate’s Court.
Relevant New York statutory resources (informational):
- New York Estates, Powers & Trusts Law (EPTL): https://www.nysenate.gov/legislation/laws/EPTL
- Surrogate’s Court Procedure Act (SCPA): https://www.nysenate.gov/legislation/laws/SCPA
- New York Real Property Actions and Proceedings Law (foreclosure): https://www.nysenate.gov/legislation/laws/RPAPL
- New York Courts — Surrogate’s Court information: https://www.nycourts.gov/courts/surrogates/
- Consumer Financial Protection Bureau guidance on mortgages after death: https://www.consumerfinance.gov/ask-cfpb/what-happens-to-a-mortgage-if-the-borrower-dies-en-1888/
Helpful Hints
- Get multiple certified copies of the death certificate early — lenders and courts usually require them.
- Don’t skip calling the lender. Many foreclosures start only if payments stop and the lender is not kept informed.
- Ask the lender whether it will accept payments from the estate while paperwork is underway; get any payment plan agreements in writing.
- If you plan to assume, ask the lender for a written statement of requirements and any release of liability you’ll receive upon approval.
- Consider getting a title search and title insurance to discover liens or judgments that could complicate a transfer.
- Shop for lenders if you plan to refinance — interest rates and closing costs vary widely.
- If relatives disagree about keeping the house, mediation or court-supervised estate administration can resolve disputes.
- Keep all communications with the lender in writing and keep copies of all mailed or submitted documents.
Next practical steps right now: locate the deed, the mortgage paperwork, and the death certificate. Call the lender to notify them and ask how they handle transfer on death. If the deed is only in your father’s name, contact the Surrogate’s Court or an estate attorney to start the probate/administration process.
Disclaimer:
This article is informational only and is not legal advice. Laws change and facts matter. For decisions that affect your legal rights, consult an attorney licensed in New York who can review your facts and documents.