REAL ESTATE FORECLOSURE DURING CALIFORNIA PROBATE
Many believe that a probate will stop foreclosure of a loan secured by a mortgage (deed of trust.) That is not true. A California probate does not automatically delay foreclosure of California real property. During the California probate timely mortgage payments should be made or you may lose the to be inherited real property to the lender through foreclosure.
If possible, payments on the mortgage under the terms specified in the mortgage should be made. California makes no exceptions. A borrower’s death does not forgive the loan. California law does not allow forgiveness of the loan due to the borrower's death.
If the probate estate defaults on a mortgage the lender may foreclose on the property. Losing the to be inherited real property to foreclosure would be costly for the beneficiaries and heirs.
In the case of default, in California, the non-judicial foreclosure process is conducted pursuant to Civil Code § 2924, which authorizes the secured lender to sell the property in satisfaction of the loan. If the power of sale clause in the note or deed of trust includes the time, place and terms of sale, then that procedure must be followed. If not, the process is as follows:
- Day 1 - notice of default is recorded in the county recorder's office where the mortgaged property or some part thereof is situated;
- Day 91 – A notice of the foreclosure sale is given;
- Day 106 – The last day to reinstate mortgage by paying all past-due amounts plus and expenses of foreclosure process;
- Day 111 – A foreclosure sale.
Understanding how mortgages are treated during the probate process is an important step towards protecting the property from falling into default. If a deceased’s estate consists of real property subject to a mortgage you should immediately consult with an experienced California probate attorney.
For additional information please refer to my website article entitled “WHAT HAPPENS IF I INHERIT CALIFORNIA REAL ESTATE WITH A RECORDED DEED OF TRUST (MORTGAGE)?”
If you have a California probate matter please contact me. You can reach me by phone at 760-989-4820, by email at [email protected] or through my online contact form.
I represent parties residing in California and outside of California, including foreign countries. I appear in all California probate courts, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County.
Copyright © 2021, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.
REAL ESTATE FORECLOSURE DURING CALIFORNIA PROBATE
Many believe that a probate will stop foreclosure of a loan secured by a mortgage (deed of trust.) That is not true. A California probate does not automatically delay foreclosure of California real property. During the California probate timely mortgage payments should be made or you may lose the to be inherited real property to the lender through foreclosure.
If possible, payments on the mortgage under the terms specified in the mortgage should be made. California makes no exceptions. A borrower’s death does not forgive the loan. California law does not allow forgiveness of the loan due to the borrower's death. If the probate estate defaults on a mortgage the lender may foreclose on the property. Losing the to be inherited real property to foreclosure would be costly for the beneficiaries and heirs.
In the case of default, in California, the non-judicial foreclosure process is conducted pursuant to Civil Code § 2924, which authorizes the secured lender to sell the property in satisfaction of the loan. If the power of sale clause in the note or deed of trust includes the time, place and terms of sale, then that procedure must be followed. If not, the process is as follows:
- Day 1 - notice of default is recorded in the county recorder's office where the mortgaged property or some part thereof is situated;
- Day 91 – A notice of the foreclosure sale is given;
- Day 106 – The last day to reinstate mortgage by paying all past-due amounts plus and expenses of foreclosure process;
- Day 111 – A foreclosure sale.
Understanding how mortgages are treated during the probate process is an important step towards protecting the property from falling into default. If a deceased’s estate consists of real property subject to a mortgage you should immediately consult with an experienced California probate attorney.
For additional information please refer to my website article entitled “WHAT HAPPENS IF I INHERIT CALIFORNIA REAL ESTATE WITH A RECORDED DEED OF TRUST (MORTGAGE)?”
If you have a California probate matter please contact me. You can reach me by phone at 760-989-4820, by email at [email protected] or through my online contact form.
I represent parties residing in California and outside of California, including foreign countries. I appear in all California probate courts, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County.
Copyright © 2021, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.