Detailed Answer

Why an inherited house might not be a probate asset

Not every house a deceased person owned becomes part of their probate estate. Whether a property enters probate depends on how title was held and whether the property had a legal beneficiary designation or trust. Common reasons a house is not a probate asset:

• Joint tenancy with right of survivorship: If the decedent and another person owned the house as joint tenants with the right of survivorship, the surviving joint tenant automatically owns the property at death. The house passes by operation of law, not through probate.
• Tenancy by the entirety: Married couples sometimes hold property as tenants by the entirety. On the death of one spouse, the survivor becomes sole owner automatically.
• Revocable living trust: If the decedent placed the house in a living trust, successor trustee provisions typically transfer ownership directly to the named beneficiaries without probate.
• Beneficiary or Transfer-on-Death (TOD) designation: Some states allow deeds or transfers that name a beneficiary who receives the property directly at the owner’s death. If the decedent executed a valid beneficiary deed or another transfer-on-death instrument that West Virginia recognizes, the property passes outside probate.
• Life estate or other splitting of interests: If the decedent held only a life estate and the remainder interest already belonged to someone else, the remainder owner already owns the property outright when the life estate ends.

To confirm whether the house is a probate asset, check the recorded deed at the county clerk/recorder’s office to see how title is held and whether any trust or beneficiary instrument exists. For general guidance about West Virginia decedent estate law, see West Virginia Code (Title 44) on decedents’ estates: West Virginia Code.

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

Short answer: It depends on whether you already own the property at law and on the lender’s policies. The legal authority to act and practical options differ by situation:

1) If you became the owner immediately at death (non-probate transfer)

If title already passed to you automatically (for example, you are the surviving joint tenant, survivor spouse, or a named beneficiary under a valid non-probate transfer), you may make mortgage payments, contact the lender about loss mitigation, and take steps to prevent foreclosure. In that case, you are the legal owner and can request loan modification, reinstatement, assumption, or a short sale as applicable.

2) If the house is still part of the decedent’s probate estate

If the property remains in the decedent’s sole name and is a probate asset, the personal representative (executor or administrator) has the legal duty and authority to manage estate property, including making mortgage payments, selling assets, and defending against foreclosure. If someone other than the personal representative makes payments without authorization, practical problems can arise:

• The lender may refuse to accept payments from someone who is not on the loan or deed.
• Payments you make might be treated as gifts to the estate or may create a claim against you if you later claim an ownership interest.
• Only the personal representative can bind the estate or use estate funds to pay debts; an unauthorised party cannot transfer title or distribute estate assets without court approval where required.

That said, many mortgage servicers will work with family members who wish to keep the loan current. A lender may accept payments from a family member if they provide the death certificate and documentation showing a right to act (or agree to accept payments temporarily). However, lenders have different policies; getting any agreement in writing is essential.

3) Practical temporary measures if foreclosure is imminent

If foreclosure is imminent and you are not the administrator, consider these steps quickly:

• Contact the mortgage servicer immediately, explain the death, and ask what documentation they need to pause foreclosure, accept payments from a family member, or consider loss-mitigation options. Request any commitment in writing.
• Gather documents: death certificate, copy of the deed, mortgage statement, and any trust or beneficiary deed you can find.
• Ask whether the loan can be assumed or modified and what paperwork is required for you to make payments while title issues resolve.
• If the estate is not yet administered and time is short, ask the court about emergency or temporary appointment of a personal representative (often called an interim administrator) so someone can act quickly to protect estate assets.

What legal risks and consequences should you know about?

• Paying the mortgage does not give you title. Unless the deed or a court order transfers ownership to you, you pay on someone else’s property and may have limited legal claims for reimbursement.
• If you make significant payments and later seek reimbursement from the estate, other heirs or creditors could dispute your claim. Get a written agreement whenever possible.
• Lenders can begin or continue foreclosure even while probate is pending if payments stop and the mortgage is in default. Acting early to communicate with the servicer can buy time.

When to get a lawyer

Consult an attorney if:

• Foreclosure is imminent and you need to stop or delay the sale.
• Title is unclear (you can’t determine whether the property passed outside probate).
• You want a written agreement with the estate or other heirs about paying the mortgage or claiming reimbursement.
• You face disputes with the personal representative, other heirs, or the lender.

Helpful Hints

1. Check the recorded deed at the county recorder’s office (or online) to see how title was held; that determines whether the property passes outside probate.
2. Contact the mortgage servicer immediately. Provide a death certificate and ask what they require to accept payments, delay foreclosure, or discuss loss mitigation.
3. Ask the county probate clerk about whether the estate is open and about small‑estate procedures. West Virginia’s statutory probate rules are in the West Virginia Code (Title 44). See the code at https://www.wvlegislature.gov/WVCODE/.
4. Get any agreement in writing before making payments—who gets credit, whether you will be reimbursed, and whether making payments affects ownership claims.
5. If you are the surviving joint owner, bring a certified copy of the death certificate and the recorded deed to the lender to update ownership records and the loan servicing file.
6. Keep detailed records of all payments you make, including the date, amount, and the loan account number, and obtain receipts from the servicer.
7. If you need help fast, consider consulting a West Virginia attorney experienced in probate and foreclosure defense. They can request an emergency court order or temporary appointment so someone may act to preserve estate assets.