Inherited Real Estate, Probate, and Mortgage Payments in Virginia: What You Need to Know

Short answer: A house you inherit may not be part of the probate estate in Virginia if it passed to you automatically by operation of law or by a written beneficiary mechanism (for example, joint tenancy with right of survivorship, a recorded transfer-on-death instrument, a living trust, or designated beneficiary). Whether the property went through probate does not remove any mortgage lien: the loan remains attached to the property and the lender can seek foreclosure if payments stop. If you already own the property because it passed outside probate, you can usually make mortgage payments yourself to avoid foreclosure, but you should notify the lender and document everything. If the property is still in probate and an administrator is appointed, the administrator typically handles estate debts and creditor communications.

How property becomes a probate asset (and how it doesn’t)

Under Virginia law, probate generally deals with property that is owned solely in the decedent’s name at death without a valid beneficiary or survivorship arrangement. Property that typically does NOT go through probate includes:

• Real estate held as joint tenants with right of survivorship or tenants by the entirety (survivorship ownership passes automatically to the surviving owner).
• Property held in a revocable living trust (trust assets pass under trust terms and avoid probate).
• Property transferred by a valid transfer-on-death deed or other beneficiary designation that remains effective at death.
• Assets with designated pay-on-death or transfer-on-death beneficiaries (bank accounts, securities where applicable).

For a general overview of estate administration rules in Virginia, see Virginia Code Title 64.2 — Administration of Estates: https://law.lis.virginia.gov/vacode/title64.2/

Why your inherited home might not be a probate asset

Common reasons a house does not enter probate:

• It was owned jointly with rights of survivorship — ownership transfers automatically to the survivor(s) at death.
• The decedent placed the house into a revocable trust and the successor trustee now controls it.
• The decedent recorded a valid transfer-on-death deed or other post-death transfer instrument recognized by Virginia.

Even if the house bypasses probate, the property’s title may still show a mortgage or deed of trust. That lien survives the owner’s death because liens attach to real property until satisfied.

Mortgages, deeds of trust, and foreclosure in Virginia

Mortgages and deeds of trust remain secured by the property after the borrower’s death. The lender’s right to enforce its lien (including foreclosure) continues until the debt is paid, assumed, modified, or otherwise resolved. For rules about property and conveyances, see Virginia Code Title 55.1 — Property and Conveyances: https://law.lis.virginia.gov/vacode/title55.1/

Can you make mortgage payments to avoid foreclosure without the administrator’s help?

Yes — if the property already passed outside probate and you are the legal owner (for example, by survivorship or under a trust), you can make payments to the lender to keep the loan current and avoid foreclosure. Practical steps and considerations:

1. Confirm ownership and title status. Check the recorded deed and county land records to confirm how title passed. If title shows you as owner (or the trust as owner), you can act as owner. If title is still in the decedent’s name, the property may be part of the probate estate and the administrator has authority.
2. Contact the lender immediately. Let the mortgage servicer know the borrower died, provide a death certificate, and tell them who now holds title. Ask how they want payments made and what documentation they require (recorded deed, court letters, trust agreement, etc.).
3. Document any payments you make. Get receipts, keep bank records, and record correspondence with the lender. Voluntary payments may protect your interest but do not change legal title or the lender’s remedies unless the lender agrees otherwise in writing.
4. Explore assumptions, workouts, or modifications. Ask the lender whether you can assume the loan, qualify for a loan modification, enter a forbearance plan, or do a short sale or deed-in-lieu if you cannot keep paying. Lenders often have post-death processes and loss-mitigation options.
5. If the property is in probate: The appointed administrator or personal representative usually controls estate assets and handles creditor claims and mortgage payments. If an administrator isn’t handling the mortgage, heirs should contact the court or a probate attorney to clarify who has authority. In many instances, an heir may make voluntary payments to preserve the property, but the administrator should be kept informed.

Practical checklist: Steps to take now

• Obtain a certified copy of the death certificate.
• Locate the deed, loan documents, title insurance, and any trust documents or beneficiary designations.
• Search county land records to confirm recorded liens and current ownership.
• Call the mortgage servicer, provide the death certificate, and ask what they require to accept payments or discuss options.
• Keep clear records of payments and communications.
• Consider talking to a Virginia probate or real estate attorney if you’re unsure about title, the probate process, or if foreclosure is imminent.

Common misunderstandings

• Myth: “If the house didn’t go through probate, there’s no mortgage.” Fact: The loan stays with the property unless paid or otherwise dealt with.
• Myth: “Making mortgage payments makes me the owner.” Fact: Making payments protects the property from foreclosure but does not change legal title by itself.
• Myth: “The lender must always work with heirs.” Fact: Lenders must follow their loan documents and applicable law; many will work with successors, but you must contact them and provide proof of ownership or status.

Helpful hints

• Act quickly. Foreclosure timelines move fast once payments stop.
• Request payoff figures in writing before making large payments so you know what remains due.
• If you are not yet on title, ask whether the lender accepts payments from someone other than the borrower and whether that will affect obligations later.
• When in doubt, get a title search to confirm liens and ownership history.
• Keep copies of everything you send the lender and obtain written confirmation for any agreements reached.
• If the property has significant equity, consider consulting a local real estate attorney to review options (assumption, refinance, sale, deed in lieu).

Resources

Virginia Code, Administration of Estates (overview): https://law.lis.virginia.gov/vacode/title64.2/

Virginia Code, Property and Conveyances (overview): https://law.lis.virginia.gov/vacode/title55.1/

Disclaimer: This article explains general principles of Virginia law and common practices. It is educational only and is not legal advice. Your situation may turn on facts or documents not covered here. For advice about a specific property, mortgage, or probate matter in Virginia, consult a licensed Virginia attorney.