Troy, OH asked in Real Estate Law, Tax Law and Probate for Ohio

Q: My mom died in Ohio and I'm executor in her Will, which doesn't list her mortgage. What happens to it? Probate required?

In Mom's Will, there is no mention of her mortgage or who inherits the house. Neither child wants it. Small, inexpensive estate and we can't find anything on life insurance. Who pays mortgage? Can I as executor sell it? Am I legally still required to pay on the house until it is sold? What happens if I can't afford the payments? We also found mortgage statements where she paid taxes but mortgage company was not paying county. Now she's behind on taxes too.

2 Lawyer Answers
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Probate Lawyer
  • Sacramento, CA

A: I'm so sorry for your loss. Dealing with a parent's estate can be complicated, especially when there are outstanding debts like a mortgage. Here's some general information, but I would strongly recommend consulting with a probate attorney in Ohio to get specific legal advice for your situation.

Typically, if the mortgage is solely in your mother's name, it becomes a debt of the estate upon her passing. As executor, one of your duties is to inventory the estate's assets and debts. Her home would be considered an asset, while the mortgage is a debt.

Even if the will doesn't specifically mention the house, it likely contains a "residuary clause" that says something to the effect of "I leave the remainder of my estate to..." That clause would encompass any assets not explicitly named, including the house.

If no one wants to inherit the house, you as executor have the authority to sell it, assuming the will doesn't prohibit that. The proceeds would first go to pay off the mortgage and any other debts of the estate, like the back taxes owed. Only after all debts are satisfied would any remaining money be distributed to heirs according to the will.

You are not personally responsible for making the mortgage payments. Those payments should come from the estate. However, if the estate doesn't have enough liquid assets to keep paying the mortgage, the lender could eventually foreclose. That's why many executors in this situation opt to sell the house, pay off the debts with the proceeds, and be done with it.

An estate like this would almost certainly need to go through probate in Ohio. That court process oversees the executor's actions in inventorying assets, paying debts, and distributing what's left to heirs. A local probate attorney can guide you through the process.

I know this is a lot to deal with while grieving. Please don't hesitate to seek legal counsel to help ensure you carry out your executor duties properly. Wishing you all the best during this difficult time.

Nicholas P. Weiss
Nicholas P. Weiss pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Estate Planning Lawyer
  • Cleveland Heights, OH
  • Licensed in Ohio

A: You need a full consult here. Many of your questions will be answered with 1) is there a will, 2) what does the will say. If there is no will, the process to clean everything up is slightly different than the process if there is a will that gives the executor specific powers.

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