Why an inherited house might not be a probate asset in Oregon — and whether you can make mortgage payments to stop foreclosure

Disclaimer: This is general information, not legal advice. I am not a lawyer. For advice about a specific situation, consult a licensed Oregon attorney.

Detailed answer — What determines whether a house is a probate asset in Oregon?

“Probate” is the court process that identifies a decedent’s assets, pays creditors, and distributes what remains to beneficiaries. In Oregon, whether a home goes through probate depends on how title and ownership were structured when the owner died.

Common situations where a house is NOT a probate asset:

• Joint tenancy with right of survivorship: If the house was owned as joint tenants (or tenants by the entirety where applicable) with another living person, title usually passes automatically to the surviving owner at death and bypasses probate.
• Trust ownership: If the decedent held the house in a revocable living trust, the successor trustee typically transfers the property per the trust terms without probate.
• Transfer-on-death / beneficiary transfer: If the decedent used a transfer-on-death deed or other valid beneficiary designation for real property recognized under Oregon law, the named beneficiary gets title outside probate.
• Property already held by someone else or subject to contract: If title had been transferred before death or the house was owned by an entity, it is not part of the probate estate.

When a house does pass outside probate, it still may be subject to any mortgage or lien recorded against it. Ownership and lien obligations are separate: a beneficiary or joint owner may receive title but will still face the mortgage lender’s rights unless the loan is paid off or the lender agrees otherwise.

When a house is a probate asset: if the decedent held title in their sole name (and there is no trust, no valid beneficiary deed, and no survivorship tenancy), the property is usually part of the probate estate the personal representative (executor or administrator) must manage. Oregon’s general probate rules are in the Oregon Revised Statutes (see Chapter 114 for probate procedures): ORS Chapter 114. For general court-run probate information, see the Oregon Judicial Department’s probate pages: OJD — Probate.

Can you make mortgage payments yourself to prevent foreclosure if the house is not in probate?

Short answer: maybe — but there are legal and practical details to consider.

If the home passed outside probate (for example, by joint tenancy, trust, or transfer-on-death), whoever now holds title is effectively the owner and can make mortgage payments to avoid foreclosure. The mortgage lien remains on the property unless paid or otherwise discharged. A transferee who takes title subject to the mortgage should confirm with the lender whether the loan will remain in place and whether the lender will accept payments from the new owner or beneficiary.

If the house is still owned by the decedent’s estate (i.e., it is a probate asset), the personal representative or administrator has the legal duty to preserve estate assets. That duty typically includes making mortgage payments to prevent loss of estate property. If you (a family member or occupant) start making payments without the personal representative’s authorization, you should be aware of these points:

• Authority: The administrator or personal representative — once appointed by the probate court — is the person with legal authority to act for the estate. If a property is a probate asset, the administrator’s role and responsibilities are governed by Oregon probate law (see ORS Chapter 114).
• Reimbursement risk: If you voluntarily pay the mortgage, you might be able to ask the estate for reimbursement, but that will depend on the estate’s assets, creditor priorities, and court approval. Reimbursement is not guaranteed, and the administrator may have to treat your payment as an unsecured claim unless the court orders otherwise.
• Lender acceptance: Many lenders will accept payments from a non-borrower or occupant to keep a loan current, but they may require documentation and will generally deal with the named borrower or an appointed estate representative during administration. Acceptance of payments does not change who owns the house or the lender’s right to enforce the mortgage.
• Protect yourself in writing: If you plan to make payments, get written agreements — from the estate’s personal representative if one exists — describing whether you will be repaid, whether payments are a gift, and how title will be handled. If no representative exists yet and you’re stepping in to preserve property, ask the probate court to either appoint you or approve your actions and reimbursement request.

Foreclosure in Oregon follows statutory procedures. The main nonjudicial foreclosure rules are in ORS Chapter 86: ORS Chapter 86 (Foreclosure). Whether the lender uses judicial or nonjudicial foreclosure, continuing mortgage payments will usually prevent a foreclosure sale so long as those payments cure the default and the lender accepts them.

Practical steps you can take right now

1. Check title records at the county recorder’s office (online or in-person) to see how the house is titled (sole name, joint tenancy, trust, TOD deed, etc.).
2. Contact the mortgage lender immediately. Explain that the borrower died and ask for the loan status, payoff amount, options for reinstatement, and whether they will accept payments from you. Ask for all responses in writing.
3. If the property appears to be part of the estate, find out whether a personal representative has been appointed. If one has been appointed, work through that person. If none has been appointed, you can ask the court to appoint one or seek authority to make or be reimbursed for payments.
4. Get written agreements. If you pay the mortgage, document whether payments are gifts, loans, or payments the estate will reimburse. Signed, written agreements reduce later disputes.
5. Consider alternatives with the lender: loan modification, forbearance, reinstatement, short sale, deed-in-lieu, or a payoff by the estate or an heir. Each option has pros and cons depending on your goals.
6. Talk to an Oregon probate or real estate attorney if there’s significant equity, contested inheritances, or an imminent foreclosure. An attorney can ask the court for directions (for example, authority to use estate funds or to appoint an administrator quickly) and can protect your financial exposure.

When you should get legal help

Get an attorney if any of these apply:

• There’s disagreement among heirs or potential beneficiaries about who controls the property.
• A foreclosure sale is scheduled soon.
• You’ve been making payments and want a court-ordered right to reimbursement.
• The title situation is unclear (possible trust, power-of-attorney issues, or an unrecorded agreement).

Useful Oregon resources

• Oregon Revised Statutes — Probate (Chapter 114): https://www.oregonlegislature.gov/bills_laws/ors/ors114.html
• Oregon Revised Statutes — Foreclosures (Chapter 86): https://www.oregonlegislature.gov/bills_laws/ors/ors086.html
• Oregon Judicial Department — Probate information and forms: https://www.courts.oregon.gov/programs/probate/Pages/default.aspx
• Oregon State Bar — public resources for consumers (probate & estate planning): https://www.osbar.org/public/

Bottom line

An inherited house can avoid probate if title passes by operation of law (joint tenancy, trust, transfer-on-death, etc.). However, avoiding probate does not erase a mortgage. You or the new owner can often make mortgage payments to avoid foreclosure, and lenders commonly accept payments from family members or beneficiaries — but you should get things in writing and confirm the arrangement with the lender. If the house is a probate asset, the appointed personal representative has the legal duty to manage mortgage obligations; if you make payments without authorization you risk not being reimbursed unless the court or the administrator approves repayment.

Because the details and legal risks vary by situation, consult a licensed Oregon probate or real estate attorney promptly if a foreclosure is likely or the title is unclear.