What Happens to the Mortgage During My Nevada Probate?
By Kim Boyer
“The home that I live in is owned solely by my husband and the mortgage is just in his name. Now that he has died, what do I do?”
After a relative dies, it helps to know what you can expect regarding the home and mortgage. The first step it to determine how the home is titled. In this example, the wife will need to go through probate in Nevada because the house was titled solely in her husband’s name. With a trust or a beneficiary deed, probate could have been avoided.
But there is better news about the mortgage. Under federal law, a relative that inherits property will not be forced to refinance or sell the real property. The surviving spouse or relative may continue to pay the mortgage payment.
The Garn-St Germain Depository Institutions Act (“Garn-St. Germain”) provides protections. Before this federal law was put in place, mortgage lenders treated a borrower’s death as if the property had been sold, which could trigger the due-on-sale clause in the mortgage. This meant that the surviving spouse or other relative would have to refinance the house and pay off the existing mortgage, sell the home or face foreclosure.
Garn-St Germain provides that the mortgage lender may not force a surviving spouse or relative to refinance or sell the property, and allows for the surviving spouse or relative to continue to pay the mortgage payments. Continuing to make the payments does not mean you have assumed the loan or become a borrower on the loan. Garn-St. Germain encourages lender to allow assumption of a mortgage, either at the contract rate or a rate between the contract and market.
There are other protections available to a surviving spouse or other heirs. The Consumer Financial Protection Agency Act of 2010 created the Consumer Financial Protection Bureau (“CFPB”), which has enacted several rules to make it easier to assume a mortgage.
Lenders can name the inheritor as the borrower on the loan without the inheritor having to go through the qualification process. So, if you inherit the home and want to keep it, the options include: (1) pay off the existing mortgage using other assets; (2) refinance the loan in your own name and the lender will examine your income, credit, assets, etc.; (3) assume the mortgage and have the loan in your name using the protections of the CFPB or (4) continue making payments on the existing loan.
You will still have to find a way to pay the mortgage. If you are a stay-at-home mom with minor children, ideally you and your spouse would have put plans in place to help you cover the mortgage, such as adequate life insurance.
If you inherit property with a reverse mortgage, Garn-St Germain does not apply. There are other laws that protect a surviving spouse when there is a reverse mortgage.
It is best for you and your family to plan ahead and put in place proper estate and financial plans. If planning was not done and a Nevada probate is needed, know that under federal laws there are protections for a relative who inherits the home with a mortgage.
Disclaimer: Information provided as a service of Kim Boyer, Certified Elder Law Attorney, updated as of 07/24/25. It does not constitute legal advice. For specific questions you should consult a qualified attorney.
