How can the estate keep the mortgage current while probate is pending? – North Carolina

Short Answer

In North Carolina, the mortgage can usually be kept current during probate by making the monthly payments from available estate funds, or (in some situations) by having the heirs/devisees pay while the estate is being administered. The personal representative should also quickly confirm who has legal responsibility for the property expenses after death and set up a practical payment method with the lender. If cash is tight, the personal representative may need to ask the Clerk of Superior Court for authority to take control of the property and pursue a court-approved plan (such as a sale or other relief) to avoid default.

Understanding the Problem

In North Carolina probate, the question is how a personal representative can keep a deceased person’s home loan from going past due while the estate administration is still in progress. The key decision point is whether the mortgage payments should be made from estate funds under the personal representative’s control, or whether the people who took title to the real estate at death must carry the payment until the estate has authority and a plan for the property. Timing matters because missed payments can trigger late fees and foreclosure steps even while probate paperwork is pending.

Apply the Law

Under North Carolina law, title to real property generally passes at death to the heirs (if there is no will) or to the devisees (if there is a will), subject to the mortgage. Even so, the personal representative has a duty to protect estate assets and may take possession, custody, and control of real property when doing so is in the best interest of the estate’s administration. When the estate needs a court order to deal with real estate (for example, to sell it to create cash to pay claims), that request is typically handled as a special proceeding before the Clerk of Superior Court in the county where the estate is administered.

Key Requirements

  • Identify who is responsible for ongoing costs: Determine whether the heirs/devisees are responsible for mortgage, taxes, and insurance after death, or whether the personal representative has taken (or should take) control of the property for administration purposes.
  • Use the right money, the right way: If estate funds are used, the personal representative should pay from an estate account and keep clear records showing the payment was made to preserve the asset and prevent loss.
  • Get court authority when needed: If the plan requires taking control of the property, selling it, leasing it, or otherwise acting beyond routine preservation, the personal representative may need an order from the Clerk of Superior Court.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The estate includes a mortgaged property and the firm is gathering mortgage details while preparing a petition related to estate assets. The first step is confirming how the property is titled and who took title at death, because that affects who is expected to carry ongoing expenses. Next, the personal representative should decide whether keeping the mortgage current is best handled through estate funds (if available) as an asset-preservation step, or through the heirs/devisees while the estate pursues the appropriate petition and any needed court authority.

Process & Timing

  1. Who pays now: Either the personal representative (from an estate account) or the heirs/devisees (from their own funds), depending on title, cash flow, and the administration plan. Where: Payments go to the mortgage servicer; estate authority issues are handled through the Clerk of Superior Court in the county where the estate is opened. What: Set up a written payment plan and documentation (monthly statements, payoff request, and a record of each payment source). When: Pay by the lender’s monthly due date to avoid default while probate is pending.
  2. Stabilize the property: Confirm homeowner’s insurance remains in force, confirm property taxes are not delinquent, and ensure mail is monitored so lender notices are not missed. If the personal representative is not yet in control of the property but needs to be, prepare the filing needed to request authority to take possession/custody/control and to pursue the estate’s plan for the real estate.
  3. Choose the long-term solution: If the estate or heirs/devisees plan to keep the home, the ongoing payments continue and the lender may require documentation of authority. If the plan is to sell, the personal representative typically coordinates a sale process that protects creditors and the estate, and the mortgage is paid off at closing from sale proceeds.

Exceptions & Pitfalls

  • Paying from the wrong source can create disputes later. If heirs/devisees are responsible for post-death expenses but the estate pays without clear authority or documentation, it can complicate accounting and reimbursement issues.
  • Not confirming title and survivorship can derail the plan. Some real estate passes outside the estate by operation of law, which can change who must make payments and who has authority to communicate with the lender.
  • Skipping court approval when it is required can delay a sale or other action. When real estate must be used to pay debts or claims, the personal representative may need a clerk-approved process, and waiting too long can increase the risk of delinquency.

Conclusion

In North Carolina, keeping a mortgage current during probate usually means making the monthly payments on time either from available estate funds (with careful records) or by the heirs/devisees who took title at death, depending on the property’s status and the administration plan. If the estate needs to take control of the property or pursue a court-approved solution, the next step is to file the appropriate petition with the Clerk of Superior Court and keep payments current while that request is pending.

Talk to a Probate Attorney

If you’re dealing with a mortgaged home during an NC estate administration and need a plan to keep payments current while probate is pending, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.