Bay Area Estate Planning Lawyer: What happens to your mortgage after you die?

When setting up an estate plan, most people are concerned with what will happen to their belongings: money, jewelry, house, etc. But usually little thought is given to what will happen to their debts when they pass away, notably their mortgage.

For years, many people expected to pay off their mortgage long before they died, but the current financial landscape paints a much different picture, especially as more and more seniors take out mortgages and home equity loans to cover the cost of living expenses. An analysis of data from 2001 – 2011 showed the number of homeowners aged 65 and over who held a mortgage increased from 22% to 30%, while homeowners aged 75 and over who held a mortgage more than doubled from 8.4% to 21.2%. These startling figures may prompt estate planning clients in the Bay Area to ask themselves, “What happens to my mortgage if I die?”

The simple answer to that question is that after you die, the mortgage stays with the property: it, in effect, belongs to whoever inherits your house. The complications arise when it comes time to determine how exactly the mortgage will be paid off. Below are some common scenarios that Bay Area estate planning attorneys have seen when a person dies while holding a mortgage.

Your estate pays off the mortgage. This may be the most desirable scenario, though it can only occur through careful legal and financial planning. In order for the estate to pay off the mortgage, the estate must, of course, have enough assets to cover the debt. This may leave your beneficiaries with less cash distributions, but they will own the house free and clear. It is possible to make a provision in your Last Will or Trust to have the mortgage paid through estate or trust assets, but it is recommended that you consult with a Bay Area estate planning attorney to determine what your situation is and how to best address it.

Your beneficiaries pay off the mortgage. Of course, beneficiaries may already have mortgages of their own, so this could lead to some complications. If the beneficiaries are willing and able, they may take over the monthly mortgage payments for your house. In this case, your beneficiaries could refinance to get a better interest rate on the mortgage. If your beneficiaries already own their own home and have a mortgage, they could sell either their home or the inherited home to pay off the respective mortgages.

If the property is worth less than the value of the mortgage, confer with the lender to see if a short sale is possible. If the lender agrees to a short sale, the home would be sold for less than the value of the debt, but the estate would not be held liable for the difference or loss. You can discuss these possibilities with a Bay Area estate planning lawyer to determine what may be the best course of action to take.

It is important to review both assets and debts with your Bay Area estate planning attorney when forming your estate plan. Please contact us immediately at (650) 422-3313 to set up a consultation so we may review your estate planning options.