What Happens to Your Mortgage After Death?

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Death isn’t on the minds of most homeowners on closing day, naturally, unless it’s a fear of drowning in paperwork. But it’s really never too early to consider what happens to your mortgage should you pass away.

The financial obligation of a home loan does linger after death. There’s a host of scenarios regarding the mortgage’s ultimate disposition, all colored by a homeowner’s estate planning (or lack thereof) and other legal issues.

It isn’t a particularly pleasant topic, but a little bit of planning and paperwork can save your loved ones from considerable headache and hassle during an already difficult time.

“If you’re really thinking about your family’s long-term interests, purchase insurance so they can stay in your home upon your death, and have a will to make everything administratively easy,” said David Reiss, a law professor at Brooklyn Law School in New York.

Keeping the House

Nearly seven in 10 recent homebuyers are married couples, according to the National Association of Realtors, so we’ll focus on them. The co-borrowing spouse will typically be financially liable for the mortgage moving forward.

A spouse who plans to continue living in the home will need to keep current on payments. If you have a life insurance policy in play, your spouse may be able to use the payoff to keep up with or completely wipe out the mortgage balance.

Reiss recommends homeowners consider term life plans rather than actual mortgage term insurance, which can be more expensive.

Your spouse needs to show creditworthiness and ability to handle the payments in order to assume the loan or to seek a refinance. Spouses who aren’t on the mortgage may still be able to assume the loan, either because they were added to the deed after closing or the home was left to them in a will.

Be aware that lenders and servicers may look to invoke a “due on sale clause” that requires the mortgage to be fully paid when the property is sold or otherwise changes hands. Federal law restricts their ability to demand payment or initiate foreclosure proceedings after a death, but that certainly hasn’t stopped some lenders from trying.

Over the years, many bereaved family members have faced harassing phone calls and the threat of foreclosure in the immediate aftermath of a loved one’s passing. New mortgage servicing rules that took effect this month should help curb the practice and ensure family members and heirs have ample opportunity to assume a mortgage (even if a modification may be necessary).

Dealing with Delinquency

If your spouse doesn’t want or can’t afford the home, then it’s typically a matter of keeping the mortgage, taxes and insurance current until the home is sold. What can complicate things is a mortgage that’s delinquent or underwater.

Dealing with delinquency at the time of death will often be a matter of duration. A mortgage that’s 30 or 60 days behind might be salvageable, but foreclosure proceedings could already be underway once you’re beyond 90 days.

Family members can allow an underwater mortgage to lapse into foreclosure, but a better plan might be to work with the servicer on a short sale. Otherwise, lenders could look to claim assets from the estate to cover the balance.

Older Homeowners

About a third of people 65 and older have a mortgage, according to the U.S. Census. For older homeowners, it’s important to talk with family members about the property’s long-term future.

Children and grandchildren may not share the same desire to keep a house in the family.

“Do you see it as something your family wants to keep?” Reiss said. “You want to make that as financially easy for them as possible.”

Despite the difficulty, these are critical conversations for homeowners, both new and veteran. It’s also a good idea to find an estate planning attorney who can help you safeguard your investment and your family.

More on Mortgages and Home Buying:

Image: Ivonne Wierink-vanWetten

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  • Gerri Detweiler

    Good to know. And our condolences for your loss.

  • Gerri Detweiler

    As much as we’d like to help this is a very specialized situation and will probably required some creativity and/or wheeling and dealing. It doesn’t sound like a conventional loan is going to be a good option – the loan amount is small (many lenders want to a minimum of $50K), the house is in need of repair and your credit isn’t great. Still the bank may want you to buy it as much as you do. Can your relatives afford to finance that amount and carry a mortgage for you? If they have the cash they can be the mortgage lender of record. The other option would be to approach a local real estate attorney and see whether they can help you negotiate a deal with the bank.

    Perhaps one of our readers can offer other ideas…

  • Credit Experts

    We reached out to Brad Wiewel, estate planning atty and contributor, and here’s what he had to say:

    If you are the owner of the house now that your mom has passed, the best solution is to refinance the loan in your own name. That would eliminate the possibility that the current mortgage company would try to foreclose if they discover that mom is dead. I would have her line up the new mortgage company prior to notifying the existing one, so she can move fast with the refi. And the new mortgage terms may be more favorable anyway. I also would have her check with an estate lawyer in her area. When she states that mom “put me on the title”, that could mean a variety of things, short of full ownership. She will not be able to refi unless she has full ownership.

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