What happens if someone dies and his house is on foreclosure? 8 Answers as of November 07, 2011

My friend died and his house is being foreclosed. He is the sole owner on the deed. He has no will. Does the property need to go through probate before the bank can act? The relatives are currently distraught since there is a court date set for early December.

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Charles M. Schiff, Attorney at Law
Charles M. Schiff, Attorney at Law | Charles M. Schiff
The foreclosure action would continue despite the death of the mortgagor. The estate of the mortgagor is the debtor in the foreclosure action. If there is sufficient equity in the real estate to justify paying the delinquent mortgage, the relatives can start a Probate action and use the assets of the deceased to pay off the mortgage debt before the property is sold as part of the foreclosure. If the real estate is "upside down" or has very limited value to the estate, there is no obligation to avert the foreclosure sale.
Answer Applies to: Minnesota
Replied: 11/7/2011
THE HUBBARD LAW FIRM, P.C. | Donald B. Lawrence, Jr.
There are a number of issues but not enough information to fully answer. The decedent being the sole owner, who died without a will, of the real estate means that a related party, a Spouse, a Child, Mother, Father, all being related parties, could file a petition in the probate court in the decedent's county of residence and ask to be appointed as personal representative (PR) of the decedent's estate. Notice would have to be given to all related parties. That having been done, that PR would have standing to deal with the mortgage holder. Unfortunately, without knowing more about the circumstances with the mortgage, it would be only speculation as to what could be done. You have not explained the significance of the court date, whether that relates to the mortgage or to a probate. The bank does not need to wait to proceed and can usually do so in two different ways. One is foreclosure by advertisement and the other is foreclosure by suit. Most lenders proceed by advertisement. Depending on if that process has commenced and where it is in the process, will affect the rights that are available to the estate. You should advised family members (who would have priority for appointment as PR) to consult with counsel at once so the facts can be determined and more specific and complete advice provided. Attorneys admitted in Michigan are permitted to practice in all state courts. Much of this situation may be dealt with without the necessity of multiple court appearances. If the relatives of the decedent wish to follow up on this answer, my contact information follows.
Answer Applies to: Michigan
Replied: 11/7/2011
Goldsmith & Guymon
Goldsmith & Guymon | Dara Goldsmith
A probate is not necessary for a home to be foreclosed. If they are distraught they should speak to legal counsel. It would be helpful for the attorney to review the note that is secured by the deed of trust. Unless they are concerned about the foreclosure, they really should not be worried. Generally speaking the house will simply go back to the bank.
Answer Applies to: Nevada
Replied: 11/4/2011
Minor, Bandonis and Haggerty, P.C.
Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
The family needs to decide whether they can and should save the house that is, is there net equity in the house, and are there family members with cash to pay the mortgage current and redeem from foreclosure? If yes, then someone needs to open probate and be appointed administrator in order to handle this matter, and pronto.
Answer Applies to: Oregon
Replied: 11/4/2011
Harville-Stein Law Offices, LLC
Harville-Stein Law Offices, LLC | Dean D. Stein
Generally, probating one's estate does not "stay" or stop foreclosure. If the relatives wish tosave the house for some reason, they should negotiate with the bank now, pending the opening of the estate.
Answer Applies to: Alabama
Replied: 11/4/2011
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    The death does nothing to affect the debt or the foreclosure.
    Answer Applies to: California
    Replied: 11/4/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Generally death does not stop foreclosure. The heirs should see a lawyer ASAP.
    Answer Applies to: Georgia
    Replied: 11/4/2011
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    I am sorry for your loss of a friend. At times like these it may be difficult for those most affected to focus their attention on business and financial concerns. Thank you for the concern you have for the family of your friend. The individual members of your friend's family need to determine their rights with respect to the home and other probate assets. I suggest you encourage your friend's family members to discuss the situation with an attorney they trust. In order to prepare for a December court date, they will want to seek counsel as soon as possible. Disclaimer: The response above does not form an attorney-client relationship, nor is it intended to be anything other than the opinion of the author. It should not be relied upon as legal advice.
    Answer Applies to: Indiana
    Replied: 11/4/2011
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