Can the estate in probate make mortgage payments for the joint tenant/spouse?

Question

My mother passed unexpectedly a few months ago. She'd been separated from my father for over a decade but they were still legally married when she passed and he is also on the mortgage and now has full ownership of the house. My father lives out of state, I don't. We would like to keep the house in the family. I (son) was named the executor, I have no siblings and she had no other beneficiaries outside of me and my dad. We have enough in the estate to fully pay off the mortgage once probate ends. I would like to use the estate monies to make mortgage payments in the meantime with my father's full knowledge and blessing, but is that allowed? Can the estate make mortgage payments until probate ends?

Richard Sternberg · Answer

While it is best to have a lawyer look over the Will, if any, and examine the situation, as a general matter, if all of the potential beneficiaries agree, there is nobody available to complain. If you have available assets and wish to pay off the mortgage so you can change the title, I'm not sure why you'd wait until after probate. Is it that you are living in the house that is now titled to your father, and he doesn't object to your paying it off and keeping it in his name until death? That agreement could change, of course, and he could leave his free-and-clear house to his present family. But, it is the duty of the personal representative to resolve the affairs of the decedent, and, if that means paying off the mortgage with other assets so you can transfer the house free and clear, then nobody is available to complain. It would be wise to document your decisions with signed consents from the beneficiaries, because people in grief forget things.  
 
It seems to me that the answer to your question is so obvious that I must be missing some subtlety. It can't hurt to sit down with a lawyer and have a frank discussion of your objectives in administering the estate. If the lawyer is representing the estate in Maryland, he must be paid by petition based on the assets of the estate, and that often means he cannot accept a retainer. But, if he is representing you as a beneficiary and is paid from your assets (which are later repaid from your inheritance), you could simply discuss the matter in a brief consult.  
 
Reading an answer on the Internet does not create an attorney-client relationship. You are represented by me when we have both signed a retainer agreement (on paper or electronically) and some money has changed hands. Usually, you will have been asked specific questions about your situation and all potential conflicts of interest will have been resolved. Until then, you have no more right to rely on this answer than if you read it in a novel.

Cedulie Renee Laumann · Answer

Please keep in mind that a federal law generally allows close family members who inherit a home to pay off the mortgage in the ordinary course and not requiring a lump sum payment.    
 
An attorney would need to sit down with you to fully answer questions related to a specific estate. 
 
An attorney would want to know:  is the deceased parent obligated under the mortgage?   Is anyone occupying the property?   Generally speaking, an estate can pay the costs for maintaining estate property. (it is unusual for an estate to pay for maintaining someone else's property).  Generally speaking a solvent estate (meaning an estate with enough money to pay its bills) can also pay creditors (people the decedent owed money to) whether or not the bills relate to any asset.   
 
While not legal advice, I hope that this helps!

Q: Can the estate in probate make mortgage payments for the joint tenant/spouse?