Hawaii: Inherited House, Probate Status, and Making Mortgage Payments to Avoid Foreclosure

Short answer

Yes — an inherited house can be a nonprobate asset under Hawaii law if title passes automatically at death (for example, by joint tenancy with right of survivorship, a properly executed beneficiary deed/transfer-on-death arrangement, or other nonprobate device). When a house transfers outside probate, there often is no need for an administrator to retitle it. However, the property still carries any mortgage or lien recorded against it, and the lender can pursue foreclosure if mortgage payments stop. You can usually make payments directly to the lender to avoid foreclosure, but you should confirm who holds the loan, inform the lender of the death and your claim, and get agreements in writing.

Detailed answer — why a house may not be a probate asset in Hawaii

Hawaii law treats property differently depending on how title is held. Some ownership arrangements transfer property at death by operation of law rather than through probate administration. Common nonprobate mechanisms include:

• Joint tenancy with right of survivorship — surviving joint owners automatically take full title when a co-owner dies.
• Beneficiary or transfer-on-death arrangements — if Hawaii-authorized deeds or beneficiary designations apply, the named beneficiary receives title automatically on the owner’s death.
• Property held in a living trust or other trust — title passes under the trust’s terms without probate.

These rules and the process for estate administration in Hawaii are governed by the Hawaii Revised Statutes (probate and estates provisions). See Hawaii Revised Statutes, Chapter 560 (probate/estate administration) for the statutory framework: HRS Chapter 560.

Key point: a property can be nonprobate but still be subject to recorded liens (mortgages, tax liens, mechanic’s liens). The lien stays attached to the property even if ownership changes when the owner dies. The transferee (surviving joint owner or beneficiary) generally takes the property subject to those liens.

Detailed answer — making mortgage payments and avoiding foreclosure without the administrator

Short answer: you can usually make payments to avoid foreclosure even if there is no administrator, but you must act promptly and follow certain steps.

Practical steps to protect the property and stop foreclosure:

1. Confirm who has title now. Get a certified copy of the death certificate and check the county land records for the deed or transfer that shows who holds title after the decedent’s death.
2. Identify the mortgage holder and loan status. Check the mortgage recorded in land records or find mortgage statements. The mortgage servicer (who collects payments) may be different from the note holder.
3. Contact the lender/servicer immediately. Tell them the borrower died and that you believe you hold title (or are the beneficiary/surviving owner). Ask who will accept payments and what documentation they need. Keep records of the conversation and request written confirmation of any temporary arrangements.
4. Continue making payments if you can. If you pay on the mortgage you help prevent foreclosure. If the lender refuses payment from you because of title issues, insist they provide written instructions and ask about options such as loan assumption, forbearance, or a short-term reinstatement period.
5. Ask about assumption, modification, or short-term forbearance. Some loans allow assumptions or loan modifications for heirs or surviving owners; others can offer temporary forbearance while title issues are resolved.
6. Consider refinancing or formal assumption. If you intend to keep the property and qualify, refinancing into your name or formally assuming the loan can resolve any lender objections (and remove a due-on-sale risk, if applicable).
7. If the lender begins foreclosure, act quickly. You may have statutory rights and import opportunities to stop foreclosure by curing the default, negotiating a workout, or asserting defenses. In Hawaii, foreclosure process and lender remedies are governed by state law; see the foreclosure statutes (for example, HRS Chapter 667 and related provisions) and consult counsel: HRS Chapter 667.

Important practical notes:

• Even if title passed outside probate, banks often want documented proof of the transferee’s legal status (death certificate, recorded deed or beneficiary designation, trust documentation). That is why it helps to secure and record any required documents quickly.
• If the property remained solely in the decedent’s name and no nonprobate device exists, the house may be a probate asset and an administrator or personal representative will be needed to manage or sell it.
• Lenders have contractual rights (for example, a due-on-sale clause) and can sometimes accelerate the debt, but they often prefer to work with a responsible payer rather than foreclose. Timely communication and payment improve your chances of keeping the home.

When you may need an administrator or court action

Situations that commonly require an administrator or court involvement include:

• Title did not pass automatically and the asset must be probated to transfer ownership.
• There are competing claims to the property and someone must clear title by probate or a quiet-title action.
• Liens or creditor claims require an estate representative to handle payments or litigation.

If an administrator is required, that person can act with legal authority to make payments, negotiate with the lender, and manage sale or transfer of the house under court supervision.

When to get a lawyer

Consider consulting a Hawaii attorney if:

• The lender refuses to accept payments from you without an administrator or court order.
• Foreclosure proceedings begin or you receive a foreclosure notice.
• Title is unclear, or multiple heirs/claimants dispute ownership.
• You need help negotiating assumption, modification, or a sale.

An attorney can review title documents, contact the lender on your behalf, and explain whether you should open an estate administration or pursue a quiet-title action.

Disclaimer

This article explains general principles of Hawaii law and common practice. It is not legal advice. For advice about your specific situation, contact a licensed attorney in Hawaii.

Helpful Hints

• Act quickly. Foreclosure timelines move fast once payments stop.
• Keep written records of all communications with the lender and any payments you make.
• Get certified copies of the death certificate early; lenders and title companies will request them.
• Search county land records online for current deed and mortgage information.
• If you plan to keep the house, check whether you qualify to assume or refinance the loan — this often resolves lender concerns.
• If you cannot afford payments, explore sale options, deed-in-lieu, or a short sale with the lender rather than letting the property go to foreclosure.
• If someone tells you you cannot make payments because you are not an administrator, ask for that policy in writing and consult an attorney — lenders commonly accept payments from a transferee while title issues get resolved.