Payment of Debts after Death
UPDATED: December 16, 2019
It’s all about you. We want to help you make the right legal decisions.
We strive to help you make confident law decisions. Finding trusted and reliable legal advice should be easy. This doesn't influence our content. Our opinions are our own.
If you have ever been named as executor or administrator of the estate of a deceased person, you understand the many responsibilities this personal representative of the estate assumes. Administering an estate involves collection of assets, payment of debts and estate taxes, and distributions to the beneficiaries. This article focuses on the payment of debts.
When a petition to admit a will into probate is submitted, a concurrent notice to the deceased’s creditors must be published in the local newspapers. Even with no known creditors, the law requires publication of this notice. Creditors then have four months to present their claims. Any claims not presented within that time are forever barred from collection, unless the administrator knew, or should have known about, a creditor. Personal representatives try to use the notice rule to wipe out both large and small debts. Some even publish the notice in an obscure local paper, and then wait for the 4 months to pass. After that, the administrator can tell the creditors that it is too late, that they can’t be paid. To counter this tactic, many states have an additional rule. If the personal representative knew about the creditor, or with a little digging could have found out, the fact that the notice was published does not extinguish the debt. A known creditor has one year from the date of death to present a claim to the personal representative, unless the creditor has actual notice that the 4-month time period is ticking away. Actual notice means more than just a single entry in an obscure paper.
Once claims are presented, they must be paid. Usually, the deceased provides assets in the will to pay any debts. The personal representative should open an estate checking account specifically to pay any debts.
States differ in their approaches to handling a situation where the deceased did not set aside sufficient money to pay off the debts. Usually the gifts or family allowance to the surviving spouse and minor children as well as the costs of the funeral expenses and administration of the estate come first. Then, in some states, federal debts and taxes, medical expenses to limited amounts, debts and taxes payable to the state have priority over other claims. In other states, any real property in the estate is sold to pay off the creditors.
An estate attorney can answer specific questions about the priority of payment of claims to creditors of an estate in your state.