Probate and foreclosure are both stressful processes. But can probate delay foreclosure? It is possible to delay foreclosure in some cases. In this guide, we will explain whether or not it is possible for probate proceedings to delay foreclosure and provide information about how to do so. (Be sure to read the section below called “How to get a court order to delay foreclosure.”)
What is Probate?
Probate is the legal process of resolving a person’s debts and distributing their assets when they die. Typically, foreclosures are not delayed during probate proceedings unless there is a court order or agreement between the creditor and heir. This can be done if the parties agree to come up with a repayment plan in order to avoid the foreclosure.
What is Foreclosure & How Does it Relate to Probate?
Foreclosure is a legal process that occurs when someone defaults on their mortgage payments and the lender takes possession of the property. In some cases, probate can be used to delay foreclosure as it allows heirs to contest any debts owed by the deceased before they are reclaimed by creditors. This can result in an agreement for a repayment plan or other terms to avoid foreclosure.
How is a trustee sale different from foreclosure?
A trustee sale occurs pursuant to a Deed of Trust. These are common in Western states such as Arizona. The Deed of Trust appoints a Trustee who has authority to sell the property if the underlying debt is not paid. A trustee sale is a public auction of a property that occurs after a borrower has defaulted on a loan secured by the property. In a trustee sale, the property is sold to the highest bidder, and the proceeds from the sale are used to pay off the outstanding debts associated with the property.
Foreclosure, on the other hand, is the court process that a lender or other party uses to take possession of a property when the borrower has defaulted on their loan or failed to make payments as agreed. Foreclosures are based on a recorded mortgage tied to the property. The foreclosure process can vary depending on state and local laws, but typically involves the lender filing a lawsuit and obtaining a court order allowing them to sell the property to recover the outstanding debt.
In summary, a trustee sale is a public auction of a property, while foreclosure is the legal process that allows a lender or other party to take possession of a property after the borrower defaults on their loan. A trustee sale typically occurs much sooner than a sale through foreclosure.
Can Probate Delay Foreclosure?
Though probate cannot completely prevent foreclosure or trustee sale, it might delay the process. Depending on your situation, a Personal Representative may be able to contest known debts of the deceased and negotiate a repayment plan or other terms in order to avoid foreclosure. It’s important for the Personal Representative to speak right away with the lender to try to postpone the foreclosure or trustee sale. That will give the Personal Representative time to (hopefully) sell the property for full market value rather than the discounted foreclosure auction price. The Personal Representative could also hire an attorney to file a motion with the court seeking to delay the foreclosure or trustee sale. (Our firm has done this successfully on multiple occasions.) Delaying the sale could also allow time to liquidate other assets or borrow funds to bring the underlying loan current.
How to get a court order to delay foreclosure.
A common reason in Arizona to delay a foreclosure or trustee sale is to ensure that creditors are paid in the proper order. A.R.S. Section 14-3805 provides:
What Happens If a Foreclosure Sale Is Scheduled during Probate?
If a foreclosure sale is scheduled during the probate process, the lender may still be able to pursue their claim against the estate even if the estate hasn’t been fully distributed. The reason is that a foreclosure is based on a recorded mortgage giving the lender a lien on the property. Foreclosures and trustee sales are a separate process from probates. A probate court “could” issue an order delaying a foreclosure or trustee sale. But there would need to be a legal basis for doing so. (Not just because there is no money.) Talk to a probate litigation attorney to see if delaying the process is possible. See the prior section and have your attorney file a motion to delay the sale based on needing to ensure that creditors get paid in the proper order.
If the Personal Representative transfers the property to the heirs or beneficiaries, that does not cancel the underlying mortgage or deed of trust. In the case of a mortgage, the creditor can still proceed through the court process to take title to the property. In the case of a deed of trust, essentially the same holds true. The creditor can still proceed with a trustee sale.
Tips for Avoiding Foreclosure During the Probate Process.
To avoid a foreclosure delay due to probate proceedings, it’s important to move through the process quickly and efficiently, and to stay in communication with the lender. Here are a few tips:
- Work promptly to have the court appoint a Personal Representative,
- Have your attorney file a motion to delay the foreclosure or trustee sale based on the reasoning explained above,
- Send Notice to Creditors,
- Pay off debt (in the order of priority under state law).
Let Us Help You!
If you are facing a foreclosure in probate, time is of the essence. You need an experienced and knowledgeable legal team on your side to help you navigate the complex legal process and protect your rights. Our law firm has years of experience helping clients in situations just like yours, and we are ready to help you too.
Don’t wait until it’s too late to take action. Call us today at 602-443-4888 to schedule a consultation with one of our skilled attorneys. Or submit a request on our Contact Form. We will listen to your concerns, explain your options, and work with you to find the best possible solution for your situation.
With our team of compassionate and dedicated legal professionals on your side, you can face the future with confidence and peace of mind. So don’t hesitate – reach out to us today and let us help you protect your home and your family.
