My mother passed away last month with a mortgaged house, how can my brother and I assume the mortgage?

My credit is fair but we can make payments. My other brother just wants to foreclose because he doesn’t care. There is $83,000 still owed on the house. The Will has not gone to probate court yet. I am executor. Can we assume the mortage before probate?

Asked on May 7, 2016 under Estate Planning, Kentucky


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Typcially, when a mortgaged property changes ownership, the mortgage lender has the right to demand full payment of the mortgage balance. This is due to something known as a "due on sale" clause. This clause allows a lender to call the mortgage due if a house becomes titled in another person's name. However, when a mortgaged home is inherited, the person who inherits gets it automatically takes over the loan; there is no need for a credit check or employment verification. Legally, in this scenario, a lender can't call the mortgage due as long the monthly payments are made on time.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You most likely cannot assume the mortgage: most mortgages have provisions which do not allow assumption. In theory, the lender could agree to allow you to assume it, since the parties to a contract (and that's what a mortgage is: a contract) can modify it by mutual consent. In practice, that will most likely not happen, especially if your credit is just "fair": lenders want the fees from refinancing and/or new mortgages, and also will not let someone with only fair credit take over an existing mortgage. You can ask, but the lender doesn't need to let you assume the mortgage, and if they don't and the mortgage has some no assumption clause or provision, there is nothing you can do about it--those clauses are completely legal and enforceable.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.