Dying with a mortgage: What happens to your home?

Elderly man and younger woman holding mortgage

Once upon a time, Americans were pretty sure they'd be free of most debt by the time they retired — at least free of the pesky mortgage that'd been hanging around for decades.

That fairy tale pretty much went poof along with the housing bubble back in 2007.

Although home values have somewhat recovered, it still appears more of us will carry home loans into retirement — or be forced to take on new mortgage debt by tapping our home equity just to live.

The percentage of homeowners age 65 and older holding mortgages increased from 22% to 30% between 2001 and 2011, according to a May 2014 analysis of data by the Consumer Financial Protection Bureau's Office for Older Americans.

Those age 75 and older took the biggest hit, seeing their mortgage debt more than double, from 8.4% to 21.2%, during that time.

On top of that, those over age 65 are holding higher balances on their loans. Between 2001 and 2011, the median amount increased 82%, from about $43,400 to $79,000.

Percentage of older Americans with a mortgage

So what happens when the property — and the debt — land in the laps of heirs?

The simple answer is that the mortgage comes with the house, says Stuart F. Ebby, a lawyer and real estate expert with the Philadelphia firm of Hangley Aronchick Segal Pudlin & Schiller.

But nothing is ever simple, right?

So here are six scenarios that could happen if you hold a home loan when you die, and one that could catch your heirs by surprise, even if you’ve paid off the mortgage.

In each of these instances, Frank Donnelly, a mortgage banker with RBS Citizens Financial Group in Washington, D.C, says heirs should contact the lender soon after a death to discuss their options.

While deciding what to do, it's important to keep the loan current, Donnelly says.

"You don't want it to go into foreclosure."

Most mortgages also require that the home be kept in reasonable repair, Donnelly says, so taxes and insurance should be paid up.

Scenario 1. Your heirs take over your loan.

In most instances, federal law allows for the transfer of the loan to a relative or other heir when you die.

Although most home loans contain a due-on-sale or acceleration clause that allows a lender to demand immediate and full payment upon transfer or sale of the home, transfers due to death are exempt.

This means your heirs would take on your home loan with the same interest rate and payment you have.

"It's just as though it were handed to you by a deed," though you may have to follow legal formalities, such as filing a will or letters of administration in probate court, says Ebby, who is also a lecturer in the University of Pennsylvania Law School.


Should you pay extra on your mortgage?

Paying your home loan off more quickly can save tens of thousands of dollars in interest charges. But before you start sending your spare cash to your lender, you need to make sure your overall finances are in order. Paying extra on your mortgage isn't always the smartest use of your money.

Scenario 2. Your heirs refinance the home loan.

If heirs want to keep a home, Ebby says, in most cases they would simply refinance the loan. This is especially true if they can get a lower interest rate or reduced monthly payments.

If your heirs can't qualify for a new loan but can afford to make monthly payments, they can always keep the original mortgage.

Scenario 3. Your heirs get the property free and clear.

If your relatives are lucky, your estate may have enough funds to simply pay off the loan. In this case, you'll have to direct in your will that other assets in the estate be sold to retire the mortgage.

If you took out a mortgage protection insurance policy, that would automatically pay off any balance.

But should an older homeowner buy such a policy specifically for that possibility?

"Usually," Ebby says, "the cost of the policy isn't justified."

The exception to the rule would be if you know your heirs cannot afford the payments or qualify for a refinancing.

In that case, a life insurance policy would solve the problem.

Scenario 4. Your heirs can't afford the monthly payments.

In this case, they can sell the home or, in the most extreme case, simply walk away.

In instances where the loan is underwater — when the home is worth less than the balance on the mortgage — walking away might be the wisest move.

"They can just give it to the lender," Ebby says. "And if it's really underwater, and it looks like it's going to stay underwater, it makes sense to walk away."

foreclosure_for_sale_sign

Otherwise — say, if there's a sentimental attachment to the home and heirs want to keep it — "then you have to try to get together with the lender and see if you can work something out," Ebby says.

You can start by asking the lender to forgive some of the debt, Donnelly says. But that almost never happens.

Lenders are far more likely to accept a short sale that allows your heirs to sell the property for less than the outstanding debt, with the bank agreeing not to hold your estate liable for the loss.

If your heirs simply stop making the monthly payments and your home falls into foreclosure, the lender could sue your estate to recoup its losses.

But that, too, rarely happens.

"What's the point of going against the estate unless you can collect?" Ebby says. "And if the estate was in such poor condition that you foreclosed, what's the chance you would collect the deficiency?"

Scenario 5. You took out a reverse mortgage prior to your death.

This is another matter entirely. A reverse mortgage is a lien on the home. If there is no co-borrower — or the co-borrower is also dead or no longer living in the home — the loan comes due when the borrower dies.

The heirs will only inherit the home itself if the reverse mortgage balance can be paid off without selling the property.

To accomplish that, your heirs would have to pay off the balance with cash from the estate or another source, or take out a new loan.

houseontopdollarbills_mortgage_lg

The more likely outcome is that your heirs will inherit whatever equity is left after the home is sold and the lender repaid.

Scenario 6. Your home is seized to pay other debts.

It might not matter what your heirs want to do with your home — even one that is paid off and has no mortgage — if you leave lots of other unpaid bills.

If a house is the only significant asset you leave behind, some states can require it to be sold to pay off non-mortgage debts.

In Arizona, for example, the deceased’s "legitimate creditors are paid before any assets are distributed pursuant to the will,” says Jeremy Sohn, an estate and trust attorney in Tucson.

The only way your heirs might avoid a forced sale is if they use their money to repay your debts, even though they’re not directly liable for what you still owe unless they co-signed originally, Sohn notes.

But one way or another, the bills must be paid.

In other states, however, estate law doesn't allow creditors to force the sale of a house to collect non-mortgage debt.

Of course, that doesn’t mean creditors won’t pester surviving family members for payment and suggest that selling the house is the "fair" or "moral" thing to do.

If this comes up, checking with an estate attorney in the only wise thing to do.

  • Tia Hines-Lynch

    Hi my friend and her brother were left there dads house that has a mortgage do they notify the mortgage company that he is deceased or do they just take over the mortgage

  • albri98

    Yes you are right that by paying her 35,00 would make you even, but why would you only receive 17,000 if the house was sold? If the horse is sold at 140,000 and there is a balance of 70,000 then you guys would have 70,000 to split up so each would get 35,000. Not 17.500.

  • albri98

    So you could sell the house let's say 100,000 and pay off the loan that was taken out on the roof let's say 15,000. Meaning 85,000 should be split 3 ways. Or you can take the house and continue the payments until they are done.

  • J.F.

    My mom is 90 and took out a home equity loan for $150k and now is having dementia and difficulty handling affairs. If she passes, will the Lender agree to a lesser amount as the property is in bad shape and maybe worth $165K if sold?

  • Glutenfreelove

    My aunt has a home she bought in 2008. I am the excutier of the will. She died in November 2014. I advised the creditors she had no assets. All her credit cards as far as I know have been written off. I have lived in the house and continue to. I am keeping the payments up too. I do not have the credit to obtain a loan on my own but I can afford the payments that are on the house now.
    Do I just keep paying on the house ans keep it in her name- or can I get the house mortgage transferred in my name?
    My lawyer says just let it ride - but Im married what if something happens to me - what would happen to the house then ? Would my family be protected? Its an un- assumable loan but I think cause im a relative that is null-void. Please someone give me some sold advise.

  • ABraveNew World

    The bottom line is this--when your relative dies everyone under the sun starting with governments, creditors, banks etc and even scam artists (claiming your relative owes money when they don't) will have their hand out to try and take whatever they may have left for you. I have seen this in just about every death of acquaintances, family, friends etc. It was then that i began to understand why so many old people are choosing to give away their money to their children/grandchildren/other relatives before they die and then choosing to die "broke".
    I never understood this when i was younger but as i got older i saw quite a few doozies. My personal favorite was a woman that claimed to be a mistress (life partner) for 30 years in order to lay claim to the estate of a married man that was simply an acquaintance. While she sued estate assets were frozen for years due to the litigation and neither the man's rightful wife or their kids could have access to it.
    In the end, the woman lost because other than for about 3 very innocent photographs and a letter from the man (a condolence letter when her relative died "wishing her the best" in life which she tried to twist into a promissory note) she couldn't "prove" that she was actually a mistress or that he had promised her his estate. I can't tell you the level of suffering that she and her lawyers put this family through.
    We made it clear to our adult kids that we have ZERO debts and that our estate is promised to NO ONE ELSE but them and that is in a WILL. But when the time comes as we enter our golden years, if at all possible, we too plan on "giving" of what we have to them BEFORE we pass away. The way we see it, you can't bleed a turnip and greedy lawyers tend to shy away from cases were there is little to no money to be had.