Dying with a mortgage: What happens to your home?

Elderly man and younger woman holding mortgage

Once upon a time, paying off the mortgage was a rite of passage for many Americans as they reached retirement, marking a time of life when they were largely debt-free.

But the housing market crash of 2008 and the failure of many of us to save enough for retirement have worked together to end that fairy tale.

Today, more of us are carrying home loans into our golden years, or even taking on new mortgage debt by tapping our home equity to pay the bills.

Data from the U.S. Bureau of Labor Statistics indicates 30% of Americans ages 65-74 still hold a mortgage, and even 14% of us who are 75 and older are saddled with home debt.

Those numbers have risen dramatically since 2001, according to an earlier study by the Consumer Financial Protection Bureau, as has the average mortgage balance older Americans are carrying.

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, including 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 EverBank in Fairfax, Virginia, 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 notes, "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 an adjunct professor of law at the University of Pennsylvania Law School.

Should you pay extra on your mortgage?

Paying off your home loan 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 many cases they would refinance the loan – especially 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, the cost of the policy isn't justified," Ebby says.

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

If so, such an insurance policy would solve the problem.

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

If the mortgage is too much for your heirs to handle, 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 cosigned 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 is the only wise thing to do.