QUESTION
What happens if someone dies and his house is on foreclosure?
Asked on Nov 03rd, 2011 on Estate Planning - Georgia
More details to this question:
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.
4 ANSWERS
Donald B. Lawrence
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.
Answered on Nov 07th, 2011 at 7:53 AM
3 Awards
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.
Answered on Nov 04th, 2011 at 11:34 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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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.
Answered on Nov 04th, 2011 at 6:35 PM
Glen Edward Ashman
Generally death does not stop foreclosure. The heirs should see a lawyer ASAP.
Answered on Nov 04th, 2011 at 5:29 PM