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My Dad Died Without a Will and His Mortgage Wasn't Paid - Why Am I Being Sued?

Posted by Fred Simon | Apr 26, 2024 | 0 Comments

When people die intestate without a valid Last Will and Testament, there are all sorts of problems that might surface for surviving children. One of the most common concerns is who should pay ongoing house expenses such as recurring monthly utility, internet, cable, yard maintenance, and trash pickup charges. Without the direction and guidance provided by a Will, who among the survivors would be inclined to step up and assume the duties and handle the responsibilities left unattended by the parent's death?

As if this dilemma wasn't bad enough, consider the situation when the mortgage payment isn't paid. What are the lender's options in such a situation? The most obvious problem for the mortgage company is that there is no longer a living person obligated to pay the balance of the debt. Until and unless the lender is connected with a surviving relative or personal representative of the decedent's estate and some agreement is made about what will happen to the residence, there is no one to account for resolving an increasingly delinquent loan.

If the mortgage payment remains paid after the borrower's death, several things can happen: ​

1.      Communication from the lender: The lender will typically reach out to the borrower's estate or any known surviving relatives to inform them of the unpaid debt and discuss potential solutions. They may send notices and reminders regarding the outstanding payments.

2.      Foreclosure proceedings: If the mortgage payment remains unpaid and no resolution is reached, the lender may initiate foreclosure proceedings. Foreclosure is a legal process through which the lender seeks to sell the property to recover the unpaid debt. The specific foreclosure process and timeline can vary depending on local laws and regulations.

3.      Sale of the property: In a foreclosure, the property is typically sold at a public auction to the highest bidder. The proceeds from the sale are used to pay off the outstanding mortgage debt. ​ If the sale generates more funds than needed to cover the debt, the remaining amount may be returned to the borrower's estate or heirs.

4.      Eviction of occupants: Once the property is sold through foreclosure, the new owner has the right to take possession of the property. This may involve evicting any occupants, including surviving children or other family members who were residing in the home.

The fallback remedy of a foreclosure action to have the home (as collateral for the loan) sold at public auction is the last resort. And since there is no living borrower, in order to permit the courts to transfer a "good and marketable title" to the highest bidder at the sale, the foreclosing lender must try to include each and every potential heir of the original deceased borrower as a defendant in the lawsuit. That is the reason why surviving children (and their spouses in Kentucky) are sued in the foreclosure complaint. They are not financially responsible to pay any of the debt, but they must be named as a party to allow the court to convey full title to the home after the sale.

About the Author

Fred Simon

Experienced Attorney Working Directly With You When working with some law firms, you may think that you are working with an experienced lawyer. In truth, your case may have been given to an associate attorney. This can result in receiving legal advice from an individual who has practiced law wit...


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