Mortgage Payments and Probate Under Texas Law


Many times, a home is a primary asset in a Texas estate. When a loved one dies, however, it is often confusing as to whether the mortgage should continue to be paid, and if so, by whom. In this blog post, we review whether some of the issues as to whether the mortgage should be paid, and if so, how reimbursement can be made. If you are facing this type of situation, reach out to one of our Dallas probate attorneys for a consultation.

Dallas Probate Attorney

Photo credit: denisbin via / CC BY-ND

When a loved one dies, the relatives often ask whether they should make payments on the mortgage of the homestead of the deceased. The relative is generally concerned that failure to pay on the mortgage may result in foreclosure proceedings and/or late fees and penalties. The next question, which follows soon thereafter, is when can the relative reimburse himself or herself from the estate of the deceased.

There are two different types of probate administrations: independent and dependent. The former has minimal court supervision. The latter requires court involvement at almost every stage, and consequently, it is more time-consuming and expensive. There are advantages, however, to a dependent administration. One of the advantages (from the perspective of the debtor) is that in a dependent administration, a foreclosure would likely be void. (In an independent administration, the foreclosure may be effective.)

Another important limitation to consider is homestead law. In an independent administration, the independent executor may set aside exempt property (which includes the homestead) for the use of the surviving spouse, minor children, and unmarried adult children remaining with the decedent’s family, without a court order. In a dependent administration, the same is generally true, except there must be a court order.

Another consideration is joint ownership. In some cases, the surviving spouse possesses a homestead life estate. This topic will be addressed in a subsequent month.

An experienced probate attorney can assist the client in making decisions that are of most beneficial to the client.

To avoid execution errors, the best practice is to have your will prepared by an attorney familiar with these requirements to ensure that it complies with all of the formalities.


The decision to pay a mortgage should be made in consultation with an experienced probate attorney. Our attorneys work out of both our Dallas and Plano probate law firm offices. If you, or a loved one, is facing a potential probate situation under Texas law, reach out to us for a consultation. No two situations are alike, and the advice of an experienced Texas probate attorney is always recommended.


Photo credit:Photo credit: denisbin via / CC BY-ND