Foreclosure and Probate in California

Foreclosure and probate are no strangers to each other in California. In our badly depressed real estate market many homes are worth less than the mortgages on them. Adding insult to injury, many heirs believe their loved one's home is worth a great deal more than it really it is in today's market.

Unfortunately, the obligation to make timely mortgage payments doesn't stop, or even pause, when your loved one dies. Some people think there is some type of grace period in which the mortgage payments temporarily cease while the probate process gets under way. This simply isn't so. Between the time your loved one dies, the will is found or the family realizes there is no will, the probate attorney is hired, the probate pleadings are drafted, filed in probate court and hearing date is assigned, the mortgage payments must be made. If they're not then foreclosure will result.

If you are an executor and become aware the probate estate is facing foreclosure on a piece of real estate then you must act quickly. First, inform your probate attorney the foreclosure process has begun. If a foreclosure sale has been scheduled for the property then tell your attorney the date. Also, give your probate attorney the name and contact information for the lender.

If there is equity in the property so it is worth saving then your probate lawyer will probably do one of two things. First, contact the lender and see if the loan can be brought current. If the probate estate has enough cash available then this is the fastest, simplest way to save the property. You will be able to use that cash to save the property if your letters testamentary or letters of administration have already issued. If you don't have your letters then your probate attorney may have to go to probate court on an ex parte (emergency) basis to get letters of special administration issued. This will enable you to access the cash and bring the loan current.

Your second option for saving a property in foreclosure is to have your probate lawyer obtain a temporary restraining order to prevent the lender from foreclosing on the property. This is definitely not your best option. Temporary restraining orders do not have to be issued by a judge. As you might imagine, judges are well aware of how these prejudice a lender who is trying to collect a legitimate debt. Also, judges vary widely in how much time they grant. However long the judge gives you, begin marketing the property for sale immediately. A temporary restraining order is very unlikely to be granted a second time. If the property is not sold during the period of the first order the judge will probably allow the lender to foreclose when the order expires.

The Grossman Law Firm, A.P.C. are San Diego, California probate lawyers.  We help probate estates in San Diego County, California.  We appear in the San Diego probate court for probate cases that come San Diego County south of Escondido.  We appear in the North County San Diego/Vista probate court for probate cases that come from Escondido all the way north to Fallbrook, California.  If you  would like more information on probate and trust administration then order our free book The Insider's Guide to California Probate and Trust Administration as well as our free DVD Probate a Will or Administer a Trust After the Death of a Loved One.