Detailed Answer

Short answer: Yes — a house can often be sold while it is in probate even if a mortgage remains, but the sale normally must be handled by the personal representative (executor/administrator) and the mortgage must be paid, refinanced, assumed, or otherwise resolved at or before closing. How you proceed depends on how title was held, whether a personal representative is appointed, the size of the estate, and the mortgage lender’s requirements.

Who controls the house while probate is open?

If the decedent owned the house solely in their name, the court appoints a personal representative to collect assets, pay debts, and distribute property under Washington probate law. The personal representative has statutory powers to manage and, when appropriate, sell estate property. See RCW chapter governing administration of decedents’ estates for the personal representative’s powers: RCW 11.40.070 and related provisions at RCW Title 11, Chapter 40.

When probate might not be required

Some property may pass outside probate. For example, property held in joint tenancy, with a transfer-on-death (TOD) beneficiary deed, or owned entirely by a living trust typically avoids probate. Washington also permits informal or simplified procedures for small estates that meet statutory thresholds. See the small estates procedure: RCW 11.62.010. If the home passes outside probate, the surviving owner or beneficiary usually has the authority to sell without a probate sale.

Common paths to sell a mortgaged house during probate

• Personal representative sells with authority under the will or court order: If the will authorizes sale or the court grants authority, the personal representative lists the property and signs the deed. The mortgage remains a lien; at closing the mortgage payoff is ordered from sale proceeds so the buyer receives clear title.
• Sale subject to lender’s consent or assumption: Some buyers may assume an existing loan if the lender permits. Many mortgages and deeds of trust require the lender’s approval to assume or will accelerate the loan when the borrower dies (due-on-sale or due-on-death clauses). The representative should contact the lender early for payoff figures and requirements.
• Short sale or deed-in-lieu: If the mortgage balance exceeds the home’s market value, the personal representative may negotiate a short sale or deed-in-lieu with the lender. Lenders often require documentation of the probate status and the representative’s authority.
• Sale after paying off the mortgage from estate funds: If the estate has cash or liquid assets, the representative can pay the mortgage before or at closing using estate funds, then transfer clear title to the buyer.

Key legal and practical steps

1. Confirm how title is held. Look at the deed. If the house is joint tenancy or has a beneficiary deed, probate may not be necessary. If solely in the decedent’s name, the representative must act under probate rules.
2. Get appointed and get authority in writing. If probate is required, the clerk issues letters testamentary or letters of administration. Lenders and buyers will ask for these documents as proof of authority.
3. Communicate with the lender early. Request a payoff statement and ask whether the loan can be assumed, whether you must satisfy certain conditions, and what documentation the lender needs to release the lien.
4. Determine equity and options. If equity exists, the lender will typically be paid at closing. If negative equity exists, discuss short sale or deed-in-lieu options with the lender and an attorney or real estate professional.
5. Follow sale procedures required by the court or will. Some sales require notice to heirs or a court confirmation hearing. Where the will grants the power to sell, fewer court steps may be needed; where it doesn’t, or where creditors object, the court may supervise the sale. See probate sale rules in RCW Title 11 (administration and sale procedures): RCW 11.40.070.
6. Close and clear title. At closing the mortgage payoff is recorded and the buyer receives title free of the decedent’s mortgage lien. The representative distributes any net proceeds according to priorities: paying administration expenses, creditors, taxes, and then beneficiaries.

What if the mortgage lender won’t cooperate?

If a lender refuses to allow assumption, insists on full payoff, or presses foreclosure, options include negotiating a short sale, asking the court to authorize a sale over objections, or refinancing (if a buyer or estate can qualify). If foreclosure is pending, time is of the essence; consult an attorney promptly.

Hypothetical example

Example: Mom died owning a house with a $150,000 mortgage. The house can likely sell during probate. The appointed personal representative lists the house, obtains a payoff statement from the lender, and finds a buyer for $220,000. At closing the lender receives $150,000 payoff; the representative pays closing costs and creditor claims from the balance and distributes the remainder to heirs. If the house were worth only $120,000, the representative would need to negotiate a short sale with the lender or seek court direction.

When to hire an attorney

Consider an attorney when any of these apply: the title situation is unclear, mortgage balance exceeds value, multiple heirs dispute the sale, the lender threatens foreclosure, or the sale requires court confirmation. Probate and mortgage law intersect often and the paperwork and timing can be tricky.

Statutes and resources:

• Personal representative powers and sale procedures: RCW 11.40.070 (see surrounding provisions in Title 11)
• Small-estate procedures (may allow transfer without full probate): RCW 11.62.010

Disclaimer

This article explains general Washington state probate and mortgage concepts. It is educational only and not legal advice. For guidance specific to your situation, consult a licensed Washington attorney experienced in probate and real estate.

Helpful Hints

• Locate the death certificate, the deed, mortgage statement, and the decedent’s will (if any) before you speak to a lender or list the home.
• Obtain letters testamentary or letters of administration — lenders and title companies will usually require them.
• Ask the lender for a written payoff statement with an expiration date and any prepayment or late fees included.
• If equity is negative, start short-sale negotiations early; lenders often require extensive documentation and time to approve.
• Tell potential buyers the property is a probate asset so their expectations match the timeline and any court steps required.
• Keep careful records: communications with the lender, sale offers, court filings, and receipts for estate expenses.
• Consider working with a real estate agent and a probate attorney who have experience closing sales of probate properties in Washington.