Detailed Answer
Who manages the decedent’s property during probate? In Florida, the court appoints a personal representative (often called an executor if named in a will). The personal representative is responsible for collecting estate assets, paying reasonable and necessary expenses of administration, and distributing what remains to beneficiaries under the will or Florida law. The rules governing administration and the personal representative’s duties are in Florida’s probate statutes (Chapter 733). See: Fla. Stat. Chapter 733.
Mortgage payments while the estate is in probate
- A mortgage is a secured obligation tied to the property. Death of the borrower does not eliminate the mortgage. The lender still has the right to collect payments or, if necessary, foreclose on the property if payments are not made.
- The personal representative should determine whether the estate has cash or liquid assets to cover ongoing mortgage payments. Using estate funds to preserve estate property (including making mortgage, insurance, and property-tax payments) is generally an appropriate expense of administration.
- If the estate lacks funds, the personal representative has several options: contact the lender to explain the situation and request a temporary forbearance or loan modification; petition the court for authority to sell the property to pay creditors; or, if authorized in the will or by statute, seek court approval to borrow funds or make other arrangements. Because foreclosure law and lender policies operate on their own timelines, acting promptly is critical to avoid a foreclosure sale.
- Mortgage lenders are not required to wait for probate to finish. If payments stop, the lender can begin foreclosure under Florida law. That means heirs/PRs should notify the lender of the death, provide probate contact information, and negotiate payment plans or timelines when needed.
Utilities and property maintenance during probate
- Keeping utilities (water, electricity, gas) on is often necessary to protect the value of real property—preventing pipe bursts, mold, pests, and vandalism. Utility service is typically a continuing monthly charge and is considered an ordinary expense of preserving estate property.
- Utility companies usually require the account holder to be changed. The personal representative can often establish an account in the estate’s name or the representative’s name for the property. The utility may require a copy of the death certificate and proof of authority (letters of administration).
- If utilities are shut off, the cost to restore service and any damage caused by lack of maintenance can reduce the estate value or create creditor claims. The personal representative should budget for necessary maintenance and keep receipts.
Special considerations: homestead property and secured claims
- Florida has special homestead protections for a decedent’s primary residence. Those protections affect how homestead passes to a surviving spouse or heirs and can limit some creditor actions. However, a mortgage or other valid lien on the homestead survives death. Mortgage lenders and tax authorities can enforce a lien even on homestead property. For general rules on probate and homestead, see Florida law resources on probate and the state constitution: Florida Constitution and statutes.
Practical duties and timeline for the personal representative
- Locate key documents: mortgage statements, insurance policies, utility accounts, the will and death certificate.
- Open an estate bank account using the estate’s EIN (apply at the IRS). Do not mix personal and estate funds.
- Notify the lender and utility providers immediately. Provide contact information for the personal representative and, when available, a copy of the court-issued letters of administration.
- Pay necessary expenses (mortgage, insurance, utilities, property taxes) from estate funds where possible to preserve estate property.
- If funds are insufficient, promptly petition the probate court for authority to sell the property or take other actions to pay secured creditors. Waiting increases the risk of foreclosure or additional charges.
Where to look in Florida law
Florida’s rules on administration and the personal representative’s powers are in Chapter 733 of the Florida Statutes. That chapter addresses appointment, duties, and creditor claims in probate: Fla. Stat. Chapter 733 (2024).
Short example (hypothetical)
Jane Doe dies owning a house with a mortgage and active utilities. The court appoints a personal representative. The representative locates the mortgage statement, notifies the lender, opens an estate account (EIN), and uses estate funds to keep current mortgage and insurance payments to avoid foreclosure. Because estate cash is low, the representative asks the court for permission to sell the property to pay remaining debts. The lender is informed and coordinates payoff through the probate process.
This explanation is educational and intended to help you understand typical steps and risks. It is not legal advice. For decisions about a specific estate, contact a licensed Florida probate attorney.
Helpful Hints
- Act quickly: contact the mortgage lender and utility companies as soon as possible after the death.
- Open an estate bank account using an EIN from the IRS before paying estate expenses—do not use your personal account for estate bills.
- Keep thorough records and receipts for all payments made from estate funds.
- Ask the lender about hardship options or temporary arrangements to avoid immediate foreclosure.
- Continue hazard and flood insurance on the property to protect estate value.
- If the estate lacks funds, petition the probate court early for authority to sell or encumber property rather than waiting until a foreclosure notice arrives.
- Consider hiring a probate attorney to help navigate court filings, creditor timelines, and any homestead issues unique to Florida.
- Remember: secured creditors (mortgages) often can proceed independently of probate if payments stop—probate does not automatically pause foreclosure.