Quick overview: Real property can pass to a new owner at a decedent’s death without going through probate when state law or the deed/title instrument creates an immediate transfer (for example, joint tenancy or a beneficiary/transfer-on-death designation). Even when title passes outside probate, any mortgage or deed of trust attached to the house usually remains a lien on the property. That lien lets the lender pursue foreclosure if payments stop. This article explains why a house may be non‑probate under Illinois law and what a beneficiary or transferee can (and should) do about mortgage payments to avoid foreclosure.

Detailed answer — how a house can be non‑probate in Illinois and who must pay the mortgage

1. How property can “skip” probate

Probate is the court process used to collect and value a deceased person’s assets, pay debts, and distribute what remains. A property will not be part of a probate estate if ownership passes automatically on death by operation of law or by an effective non‑probate transfer:

• Joint ownership with right of survivorship (joint tenancy or tenancy by the entirety). When the co‑owner survives, title passes immediately to the survivor without probate.
• Revocable transfer-on-death or beneficiary deed (if the decedent executed a valid transfer instrument that becomes effective at death and was properly recorded).
• Property held in a living trust. When properly funded and the trustee named as successor acts, the trust assets avoid probate.

In each of these situations, the person named as the surviving owner or beneficiary typically becomes the legal owner immediately upon death and can act as owner for purposes of managing the property.

2. Why the mortgage still matters

Mortgages and deeds of trust create liens securing repayment of a loan. A lien attaches to the property itself, not only to the borrower. That means:

• If a house transfers outside probate, the new owner generally takes it subject to the mortgage lien. The lender’s security interest does not disappear just because title passed to someone else.
• If the loan goes unpaid, the lender can pursue its remedies (including foreclosure) against the property, whether or not the property was part of a probate estate.

In short: non‑probate transfer of title does not erase the mortgage.

3. Making payments to avoid foreclosure — what a beneficiary or transferee can do

If you are the person who now holds title (for example, joint tenant, TOD beneficiary, or successor trustee), you usually have the legal right to make mortgage payments, work with the lender, and apply for loan modification or reinstatement. Practical steps and legal points:

• Confirm ownership. Check the county recorder’s office to verify whether title has already transferred into your name (and how it transferred).
• Contact the lender immediately. Let them know of the borrower’s death and that you are the new owner (or are trying to preserve the property). Request a payoff or reinstatement statement and ask about options (assumption, modification, forbearance, short sale, deed in lieu).
• Document payment authority. If you are not yet on title but are paying to protect the property (for example, you are an heir worried about foreclosure while probate is pending), tell the lender in writing why you are paying and ask for written acknowledgement that payments will be applied and that acceptance won’t be treated as an admission the lender must release the lien or transfer title.
• Consider loan assumption rules. Some mortgages include “due on sale” or similar clauses; some loans allow formal assumption by a new owner. The lender can refuse assumption, but in practice many lenders will negotiate options to avoid foreclosure. Ask the lender what is required for you to assume the loan.
• If property is in probate. If title remains in the decedent’s name and the house is a probate asset, only the personal representative/administrator (or someone with the court’s permission) can bind the estate to long‑term deals. However, courts and lenders commonly permit short‑term arrangements to prevent loss of security value. A personal representative should be appointed promptly so they can handle payments and creditor claims.

4. Risks and limits of paying without administrator involvement

Paying the mortgage out of your own funds does not automatically give you legal title or erase the lender’s lien. A few practical consequences:

• Paying does not make you the owner. If you are not already the owner, keep records (check copies, bank statements, a written payment agreement) to show your intent and protect any potential equitable claim.
• You might get an equitable lien or be entitled to reimbursement in some circumstances, but that depends on facts and court rulings.
• If the property is part of estate administration, other heirs may challenge unilateral actions. If the estate has an administrator, you may need the administrator or court approval to sell or permanently encumber the property.

5. Foreclosure timing and Illinois law basics

In Illinois, lenders generally enforce their rights through foreclosure remedies if a borrower defaults. The process and timing vary based on the loan documents and whether the lender pursues judicial foreclosure. Because the mortgage lien survives the borrower’s death, the lender can move to protect its security interest even while the probate process is ongoing. For an overview of Illinois foreclosure practice and the statutory framework, see the Illinois Code of Civil Procedure provisions governing foreclosure actions and related statutes on the Illinois General Assembly website: 735 ILCS 5 (Code of Civil Procedure).

For background about probate administration in Illinois, see the Probate Act (Probate Act of 1975): 755 ILCS 5.

Practical next steps (clear, immediate actions)

1. Get a certified copy of the death certificate.
2. Search the county recorder/land records to confirm the deed and current owner.
3. Contact the mortgage servicer; ask for a payoff/reinstatement statement and explain you want to avoid foreclosure.
4. If you are the new owner, ask about assumption, modification, or short‑term forbearance.
5. If the property is in probate, urge appointment of a personal representative and ask that they immediately notify the lender and handle payments or sale.
6. Keep detailed written records of all payments and communications with the lender and other heirs.
7. Speak with a probate/real estate attorney if there is any dispute among heirs, if the lender threatens foreclosure, or before you make large financial commitments related to the property.

Helpful hints

• Do not assume title status. A quick recorder’s office check or title search tells you whether you already own the property.
• Act fast. Lenders move on defaults; a few missed months can start a foreclosure timeline.
• Get everything in writing. Verbal promises from servicers are easy to lose; get written confirmation of any agreement to accept payments, forbear, or hold proceedings.
• If you pay to protect the house, keep clear proof of your payments and your purpose for paying. That helps if you later seek reimbursement or a court order recognizing an equitable interest.
• Consider cost vs benefit. If mortgage arrears, taxes, and maintenance exceed the property’s value, other options (short sale, deed in lieu) may be better than continuing heavy out‑of‑pocket payments.
• If multiple heirs exist, coordinate. Uncoordinated payments or sales can lead to disputes and litigation.
• If you cannot resolve things with the servicer, ask a lawyer about filing a motion in probate court or defense in foreclosure court to protect rights and preserve the property’s value.