Skip to main content

Does A Probate Proceeding Prevent A Bank From Foreclosing?

In the state of Florida, a probate proceeding will generally not stay a foreclosure on a property owned by the decedent, so the bank can proceed with the foreclosure. This is because the probate process is focused on administering the estate of the decedent and distributing their assets to the beneficiaries, whereas the foreclosure process is focused on repossessing the property in order to satisfy the outstanding mortgage debt.

If the decedent had a will in place, the probate court will appoint a Representative to oversee the administration of the estate, sometimes referred to as an executor. The executor is responsible for paying off any outstanding debts of the estate, including the mortgage on the property. If the estate is unable to pay off the mortgage debt, the lender may proceed with the foreclosure process.

However, there are a few circumstances in which the probate process may impact the foreclosure process. For example, if the decedent’s estate is in the process of selling the property and the proceeds will be used to pay off the mortgage debt, the probate court may grant a stay of the foreclosure until the sale is completed. Additionally, if the decedent’s estate is disputing the validity of the mortgage or the amount of the debt, the probate court may hold a hearing to determine the merits of the dispute.

It is worth noting that even if a probate proceeding does not stay a foreclosure, the decedent’s beneficiaries may be able to negotiate with the lender to avoid the foreclosure. For example, they may be able to come to an agreement on a payment plan or negotiate a short sale of the property.

Overall, it is important for the beneficiaries of a decedent’s estate to understand their options and responsibilities when it comes to the mortgage on a property. Working with an experienced attorney and financial advisor can help ensure that the probate process and any potential foreclosure proceedings are handled appropriately.

Author: Marlon O. Brammer

Marlon is the Founder and Managing Partner of Brammer, PLLC, where he helps small business owners, real estate investors, and families in Florida, protect their assets and grow generational wealth.

Marlon O. Brammer

Author Marlon O. Brammer

Marlon is the Founder and Managing Partner of Brammer, PLLC, where he helps small business owners, real estate investors, and families in Florida, protect their assets and grow generational wealth.

More posts by Marlon O. Brammer
%d bloggers like this: