Your post also has served as a bit of inspiration and it seems to me that both John Martin and Steve Anderson are asking the wrong questions and were fretting about the wrong issues at the outset.
Moreover, it seems that both have already probably eviscerated their single best defensive avenue by failing to educate themselves and unnecessarily waiting to develop a thoughtful and coherent defensive strategy.
Your post t, reminds us that most mortgage lenders are totally ignorant of both the fact of a decedent's death and the nature of a decedent's estate until informed of this by the decedent's family.
This serves a reminder of yet another of Mr. Roper's really excellent suggestions and one well known to lawyers, which is when the other side is IGNORANT of critical details, the best thing to do is usually KEEP YOUR MOUTH SHUT.
Because Steve and John Martin have proceeded without consulting an attorney, they already made probably the single worst mistake. That would be filing a probate action AT ALL.
In non-judicial foreclosure states, opening up a probate proceeding can be an effective strategy to slow down a non-judicial foreclosure. By contrast, opening a probate proceeding in a judicial foreclosure state would seem to me to be the surest way to speed foreclosure along!
As t explains, absent a right of survivorship within the deed or another single clearly identifiable heir (e.g. widow or widower), the identity of the owners of the subject property is usually legally unclear UNTIL the family files for probate. The creditors typically stand aside and WAIT in a judicial foreclosure state to learn the identity of the owners through the probate proceeding.
Moreover, UNTIL someone TELLS the lender that the decedent is DEAD, this is UNKNOWN to the lender.
Someone like Steve Anderson or John Martin probably created an initial problem for themselves because of their eagerness to inform the lender of the death!
As a preliminary matter, IF there was any substantial equity in the property, either made a very grave mistake in allowing the loan to fall into default.
Despite all of the misinformation being put out by the debt elimination scammers, anyone with equity who stops paying their mortgage voluntarily when they have the financial means to make the payments needs to have their head examined. As Mr. Roper constantly reminded us, this is ALWAYS a mistake!
So let us suppose (a) that the subject property is deeply under water and that it is in the interest of the heirs to draw out the foreclosure matter and (b) that there is no other estate property subject to being taken in a foreclosure action in respect of the deficiency.
Under these circumstances, the single BEST strategy on the part of the heirs is (a) to NOT inform the Lender of the decedent's death and (b) NOT file the Will for probate. The Will would be simply misplaced!
Why is this a better strategy? Well the answer would be really obvious to any first year law student of ordinary intelligence, though it would certainly elude Steve and John, since they have not bothered to get legal counsel.
IF THE LENDER DOESN'T KNOW THAT THE BORROWER IS DEAD, THE LENDER WILL FILE THE FORECLOSURE ACTION AGAINST THE DECEDENT, RATHER THAN THE ESTATE!
Now Mr. Roper has warned us before repeatedly that the goal in a foreclosure defense is NOT necessarily leading the plaintiff and the court to the TRUTH! This is not to say that the defendant ought to mislead or deceive. Rather it is just that there is no duty to inform or clarify to HELP THE OTHER SIDE. You can certainly be ASSURED that the plaintiff's foreclosure mill lawyers are not wringing their hands wondering about ways to HELP THE BORROWER by informing the borrower about weaknesses or defects in the defensive case.
SO WHY DO HEIRS AND DEFENDANTS SUCH AS STEVE AND JOHN FEEL THAT THEY NEED TO HELP THE PLAINTIFF OUT BY COACHING AND ENCOURAGING THE VERY ENTITIES THAT SEEK TO WIN A LAW SUIT?
I always find it baffling that defendants are always SO EAGER TO HELP THE PLAINTIFF OUT.
So what would happen if the plaintiff brought suit against the decedent rather than the estate?
Well, the very first thing that would happen would be that the plaintiff will arrange service of summons, citation or other official process. Some sort of process server will come around to the decedent's last known address.
Of course, again, the ever helpful Steve or John might then blurt out to the process server that the Decedent is deceased. A more thoughtful and clever defendant might be somewhat more discrete.
A better response might be "Mary Anderson is not here!" (supposing that Steve's mother is named "Mary"). Some process servers would probably ask when they should come back or when Mary is expected to return. Steve or John might take this opportunity to blurt out, "She is NEVER coming back! She is DEAD! Tell your client that we want to help the bank win its case as quickly as possible". A more discrete response might be to simply say, "I do not know when to expect her".
If Mary Anderson is buried in an adjacent state, or perhaps buried next to her late husband in Florida, one could tell the process server that "Mary Anderson is in West Palm Beach".
Generally, it would be somewhat better to avoid answering the door when the process server comes around. Of course, that presents some risk that the process server will make some inquiries of the neighbors.
Ideally, the named executor and heir would avoid accepting service on Mary Anderson's behalf. It would be better is another member of the family or properly coached member of the household or servant were to be the one interacting.
If you are really lucky, the process server will be a dishonest and disreputable sewer service sleazebag and will then simply fill out an affidavit claiming to have served Mary Anderson some months after Mary's death. If not as lucky, the process server will file an affidavit of service showing that they left a copy of the summons with an adult person at Mary's last known address.
WHY go to all of this trouble? Well it is axiomatic that a law suit against a dead person is a nullity. As far as I know, this is true in all fifty states.