Ask a Lawyer - Archive

In case of a family member's death and there is no executive of the estate, can we pay the mortgage off in full and put in another name? If we can do this can the debtors of the deceased come in and make claims on?

The answer to your first question is no. egardless of whether the family member died testate (with a will) and failed to identify an executor, or died intestate (without a will), other family members may not pass title to the decedent's property by paying off the decedent's mortgage. Assuming that the property was separately owned by the decedent's total probate estate, and net of liabilities was worth $50,000, a probate proceeding will have to be initiated so that the probate court will appoint a representative of the estate (either an executor if there is a valid will or an administrator, if there is not) empowered to transfer title to the property.

If a probate proceeding is begun, creditors of the deceased will definitely have the right to make claims against the estate including all the property in the estate. In fact, it is the legal duty of the court-appointed representative of the estate to attempt to notify all know creditors that the estate has been opened and any claims of theirs may be made.