A loved one’s death is a significant loss that, if you are
responsible in some way for their wills
and estates, can also leave you with the job of sorting out their
final accounts. Many have discovered debts in their loved one’s name, which
need to be repaid. Yet who
is responsible for a deceased person’s debt? You might be surprised to
learn that there is more than one answer.
What Is an Estate, and Why Is It Important?
An estate comprises everything of value that a person owns
at the time they pass away. Generally speaking, any bills left behind after a
loved one’s death must be paid from their estate. This can be done by selling
their assets to raise money for the debts or be as simple as writing creditors
a check from their bank account. What’s left after these payments can then be
distributed via the probate process.
If there isn’t enough in a person’s estate to cover their
debts, it may simply be that creditors don’t get paid. However, this only
applies to certain kinds of debt. Other kinds can end up the responsibility of
family members. Let’s take a closer look at these different debt types and what debts are forgiven at death.
Money Owed on Credit Cards
If your loved one has a balance pending on one or more
credit cards and had a joint account with someone, that person will have to pay
the debt. However, should there be no assets left in a loved one’s estate to
pay these bills, creditors will not receive any money. This is because credit
card debt is unsecured, meaning that the lender has no rights to claim assets
for the purpose of debt repayment.
However, there are many ways around this. For example, a
credit card company can send your loved one’s account to a collection agency,
which may hound you with phone calls to try to get you to pay them. As well,
they can order a lien to be placed on your loved one’s assets until you pay
them, which can make it impossible for you to pay any other debts.
A credit card company may also try to sue you for the money
owed, which can lead to garnished wages.
Money Owed on a Mortgage
If your loved one co-owned
their home with another person, or if the house will be inherited by a specific
individual, the co-owner or devisee (a person
to whom real estate is left by the terms of a will) will be responsible
for the remainder of the mortgage payments. In the event that your loved one
was the only one who owned the home, their estate is responsible for paying
this secured debt.
Money Owed on Home Equity Loans
Another secured debt, an outstanding amount left on a home
equity loan must be repaid. If the lender wants the full amount owing right
away, the house may have to be sold if there are insufficient funds in the
estate. However, anyone who is inheriting the home can ask the lender about the
possibility of taking responsibility for these payments.
Money Owed on a Vehicle
If you are responsible for your loved one’s estate, you will
have to pay any outstanding car loans from that estate if there are sufficient
funds to do so. Like mortgages, car loans are secured debts. That being said,
if the loan cannot be paid for, the asset—which is the vehicle—becomes the
collateral and can thus be seized following the placement of a lien on it by
Should a friend or family member inherit the vehicle, it
will be their responsibility to continue paying the loan. Otherwise, they run
the same risk of repossession.
Other Loans that Are Owed
If your loved one had a student loan that was granted
privately from a family member, that debt should be repaid by their estate.
Once again, if there was joint ownership of the loan via a co-signer, then the
co-signer is responsible. As well, because student loans are unsecured, a
lender may have no choice but to go unpaid. As far as what debts are forgiven at death, other
lenders may dissolve loans immediately following notification that the person
has passed away.
Common Issues That Are Completely Avoidable
There are many things that can go awry when trying to settle
a loved one’s outstanding debts, even if they obtained estate planning
services. However, none of these is impossible to rectify.
Pay Old Debts First
Before accepting any money, beneficiaries must pay any old
or outstanding debts left by their loved one. In some cases, a beneficiary can
be faced with some unwelcome surprises in the form of hidden debts.
In New York State, it is assumed that creditors will do
their due diligence to collect money owed, so it is not mandatory to post a
notice to creditors in your local newspaper. The statute of limitations on debt after death states
that creditors have six years from the date an executor was appointed to make
their claim.1 Creditors who don’t do so have their claims rendered
Never Speak to Creditors
Another common issue has to do with speaking to creditors or
collection agencies. Among the tactics they will use to try to recover their
money, members of these organizations will resort to feigned empathy and a
friendly and conversational tone to try to coerce repayment.
However, you are not obligated to speak to any creditor
regarding your loved one’s debts. The best thing to do is to never make any
commitment for payment and to end the conversation as quickly as possible.
Taking Personal Responsibility for a Loved One’s Debt
beneficiaries responsible for a deceased person’s debt?” is a very
common question. Unfortunately, some have ended up paying for their loved one’s
debt from their own pocket after having a conversation with a creditor.
Although creditors are legally permitted to contact the
relatives of a loved one to get the contact information for the person
responsible for paying their debts, they are not legally permitted to try to
coerce you into paying the debt yourself. None of your loved one’s
beneficiaries is responsible for the personal payment of their outstanding
The above is true even if your loved one’s estate is
insolvent or contains more debt than assets. If this is the case, you may not
receive an inheritance, but you won’t be responsible for debt repayment,
Any money that is in the estate will be used to pay for
funeral expenses, secured loans, preferential debts (social insurance and tax
contributions) and credit cards or personal loans, in that order.
Deceased Relative Debts Can Be a Complicated Process
Even if you do your homework and your loved one left
detailed instructions, you can still encounter unexpected problems with
settling their debts. The worst thing about going through this process is that
you are already feeling emotionally vulnerable and overwhelmed by what needs to
be done, and creditors are perfectly willing to take full advantage of this.
You also need to ensure that your loved one’s wishes are
followed exactly as they requested, as this can also lead to liability on your
part. Having an estate lawyer on your side, you can communicate
to creditors that, despite your grief, you will not be taken advantage of. You
can also ensure that your attempts to execute their wishes are well within
However, you need to ensure that the person chosen to
represent you is well-versed in New York State probate law. When it comes to
your loved one, there is simply no replacement for an attorney who has the
right amount of knowledge and experience in probate law.
The lawyers at Joseph A. Ledwidge, PC have 32 collective
years of experience in probate and estate administration law. No matter the
legal issue surrounding your loved one’s estate, we are well-prepared to
represent your interests. At our firm, your result matters. Discover the
benefits of working with attorneys who understand your cost and time concerns
as you deal with your loss. Contact us today to arrange your consultation.
It is not uncommon for a person in their 20s or 30s to think that a will or a trust is only something that people in their parents’ or even their grandparents’ generations need. The truth, however, is far from this. While most people die later in life, accidents can happen at any time and a person may become disabled at a young age and unable to take care of their obligations or affairs even if they are still alive. An estate plan is simply smart insurance in a way.
NerdWallet notes that as more millennials become parents, the need for them to engage in estate planning grows. A clearly identified plan including named guardians for what will happen to their children should they die is something every parent should have. This is not a decision to be taken lightly. Simply saying that a grandparent will raise a child is not enough. A plan should also identify financial support for the to-be guardian.
ThinkAdvisor encourages millennials to give consideration to what might happen if they were to be involved in a tragic accident. Who would be able to make medical decisions on their behalf if they could not do it for themselves? This is another thing that can be identified in a good estate plan.
Documenting online identity and login information should also be done so that the appropriate person or persons would have access to these accounts in the event of a death. Beneficiaries for work-sponsored 401K plans and life insurance policies should also be updated and reviewed regularly.
When it comes to setting up an estate plan, health issues may play a role in various ways. For example, someone may be prompted to set up an estate plan specifically because of health challenges they are going through, which have made them realize that it is important to be prepared for unexpected problems that may be life-threatening. Moreover, other people may want to prepare for health issues that leave them unable to take care of themselves.
There are a number of options for those who want to ensure that they are cared for in the event they become incapacitated, and many people have benefit from setting up a health care proxy, also known as a durable power of attorney for healthcare. By doing so, you can appoint someone who you trust to make key medical decisions for you in the event that you are no longer able to make these decisions yourself. There may be other ways you can prepare for these potential challenges as well, such as making revisions to your will.
Ultimately, health issues can be incredibly overwhelming and disruptive, so it is imperative to be prepared. When it comes to estate planning, you should not only be taking into consideration your finances and those you love, but other important aspects of your life as well, such as your health. By preparing yourself for issues that could arise in the future, you may be able to rest easier at night knowing that you are ready for unexpected problems.
The immediate period after the passing of a relative is not easy and can mix heartbreak and confusion. You might feel you have to start quickly on all of your plans to handle the estate of your loved one. However, you should not feel pressured to swiftly carry out your New York estate plan. There is only one step to worry about off the bat.
The first step you should take as soon as possible is to secure the tangible property of your loved one. You want to make sure that the tangible assets your relative owned will not go missing before it is time to distribute them to whoever is listed in your relative’s will, or, if there is no will, through whatever means your relative planned. There are times when assets may vanish if someone else has access to them.
Agingcare.com explains that after this step, you can take the time to grieve . The financial matters of your relative’s estate will not require immediate attention. However, if your loved one was issued a Social Security check after passing away, you will have to go through the proper procedures listed on the Social Security Administration’s website to return it.
Also make sure that, if your relative made a will, you file the will for probate as soon as you can. This will help prevent delays with the probate process and keep you from feeling stressed out. On top of your grief, you do not need to worry about your estate plan taking longer to carry out than it has to.
You should also plan on seeing an attorney, but you do not have to make an immediate visit. An article on Caring.com points out that the period following the death of a loved one is very emotional and you may carry those feelings with you into the attorney’s office. Waiting a while can help clear your mind and let you address estate issues with your attorney in a calmer manner.
Losing someone you love is difficult, especially if you were close with that person. The situation can become even more complicated if the deceased party asked you to serve as the executor of their estate or the trustee for their trust.
That means that not only do you have to deal with grief, but you also have to handle the complex financial and legal responsibilities of administering an estate. The first step toward fulfilling your obligations to your deceased loved one is familiarizing yourself with your responsibilities as the trustee or executor .
It is your job to tie up loose ends after someone dies
An executor helps address all outstanding issues in someone’s legal and financial life after their physical life is over. You will handle the financial and legal details related to their passing and the liquidation of their assets.
Typically, you will have some financial and legal obligations to fulfill prior to disbursing the assets from the estate. Often, these responsibilities include:
assessing liabilities and debts
locating beneficiaries and heirs
handling any probate proceedings
Obviously, there are many complicated steps involved in estate administration. As soon as you assume your mantle of authority, you should review the last will. Whether you go over it with your own attorney or the attorney who drafted it, it’s important to understand the request and obligations outlined in the last will or estate plan. From there, you will want to secure all important financial documentation related to the estate, ranging from outstanding bills to text documents.
You must pay debts before you disperse anything to other people
No matter the emotional significance of a valuable asset, you do not have the right to disperse anything from the estate until all outstanding debts and obligations of the deceased get paid in full. That is why reviewing financial documentation is critical.
Once you understand what obligations the testator left to you, you can quickly handle them and move on to locating and organizing assets for heirs and beneficiaries. Anytime you disburse funds, whether it is to a child of the deceased or a creditor, make sure that you have accurate records and receipts. If someone chooses to challenge your role in the future, that documentation can prove that you performed your fiduciary duty with care and diligence.
If you are uncertain about the right steps to take, it is best to refer to the advice of an experienced estate administration attorney in Jamaica. In some cases, you could be held legally or financially responsible for mistakes you make in good faith while dealing with an estate. The best way to avoid any such liability is to carefully comply with the terms of the will and with the law.
Many people in the New York City area rent their primary residence. However, for those who own their homes, these parcels of real estate are often among the largest single-item assets in their portfolios. This, combined with the fact that property values are high in the area, has the potential to cause a considerable amount of loss in the probate process.
The way most people avoid this loss is by using trusts. As mentioned on CNN, this type of ownership has the potential to avoid the probate process entirely . Trusts are legally distant from the person who establishes them, and many are not dissolved upon that person’s death. Rather, those who use these financial tools typically plan ahead so that certain heirs gain access to the funds and assets held within.
Trusts seem more complex on paper than they often are in reality. The most commonly used trusts are rather simple in terms of function. They are official stores of wealth that one may transfer assets to, modify the terms of and withdraw from if one has certain prescribed funding, modification and beneficiary privileges. Per FindLaw: People often name themselves as beneficiaries of their trusts, a title they schedule to pass to their children under certain conditions.
The FindLaw resource also mentions the fact that those who felt burdened by trust paperwork in the past may find the processes surrounding funding and deed paperwork more streamlined now. Even so, performing these tasks is often not as straightforward as it might be for other types of simple ownership structures, such as brokerage or banking accounts. However, there are many ways that an estate planner might address this complexity, potentially allowing a higher percentage of an estate to weather probate without diminishing.
As a New York resident who is currently going through a divorce from your significant other, you may find yourself focused on getting your affairs back in order and figuring out your living situation in the days that follow. While working through such matters is an undeniably important aspect of divorce, so, too, is making necessary changes to your estate plan. At the law office of Joseph Ledwidge, P.C., we recognize that your estate planning needs may change in the wake of a divorce. We have helped many people facing similar circumstances make changes to their estate plans that better reflect their new circumstances.
According to Forbes, many married people give their spouses important roles with regard to their estate plans, which might mean giving the other party in the marriage the power to make health care-related decisions, financial decisions and so on. Once your marriage ends, however, you may not want your one-time spouse having so much power over your situation and affairs, and you may have cause to update various areas of your estate plan .
For starters, you may have left some of your assets behind to your former spouse in your will, but you may not want him or her to be a beneficiary anymore once your divorce finalizes. Ultimately, you will need to make some important decisions about what to leave behind for your spouse, or you may decide not to leave anything at all in a move he or she may challenge somewhere down the line.
You may, too, want to update your health care directives in the wake of a divorce. Often, spouses give one another the power to make medical decisions in the event that one party in the marriage becomes unable to make such decisions for his or herself. For obvious reasons, however, you may not want your former spouse having this power once your marriage ends, in which case you will probably want to consider giving the responsibility to someone else. You can find out more about estate planning by visiting our website.
As a resident of New York who is watching your parents age, you may have firsthand knowledge of just how difficult it can be to do so. Watching your parents grow older can prove even more difficult when one of them starts suffering physical or mental hardships, as some conditions can make it increasingly tough for your parents to make sound decisions and otherwise care for themselves. At the law office of Joseph A. Ledwidge, P.C., we are familiar with the types of circumstances that may lead you to consider a guardianship or conservatorship over an aging parent or other loved one. We have helped many clients facing similar situations find long-term solutions that meet their needs.
According to the Motley Fool, guardianships and conservatorships are similar to each other in that they both involve giving someone decision-making power over someone else who is unable to manage their own affairs. There are, however, some key distinctions between the two, and understanding how they differ may help you determine whether a guardianship or conservatorship may better suit you and your family’s unique needs.
The short answer to what differentiates guardianships from conservatorships is that guardianships give someone power over another with regard to personal and health care-related affairs, while conservatorships grant someone power over someone else’s financial affairs. For example, a guardianship typically gives you the power to make decisions regarding medical decisions, living arrangements and so on for someone a court considers to be incompetent or incapacitated.
A conservatorship, meanwhile, allows you to handle the bank accounts, debts and related financial affairs of someone who is incompetent or incapacitated. You can find more on this topic by visiting our webpage.
Long-term care planning is not generally a topic that people in New York are itching to discuss with their loved ones. Often, the people who will need it the soonest, may not recognize how critical planning ahead actually is. They may also neglect to clearly define their expectations to those who they want to participate in their care. Likewise, the people listed in another person’s long-term care plan may have an inaccurate understanding of their responsibilities or be unfamiliar with where to find critical documents that disclose vital information.
When families have a loved one who is getting close to needing a reliable long-term care plan, it is essential that they work together to coordinate something that is understood by all of the parties involved. According to Money , many children of aging adult parents say they have never had a conversation with their parents about a long-term care plan even though 69 percent of those parents say they have had that discussion with their children. This disconnect can lead to disappointment, confusion and contention if there are misunderstandings when the time comes that the long-term care plan is needing to be put to use.
Forbes Magazine says many people put off long-term care planning because they do not fully understand just how critical such a plan is. People think they have a clear understanding of the costs of a long-term plan when in reality, those costs are much higher. Additionally, in a survey that was conducted, only 33 percent of the people who were surveyed admitted that they would need a long-term care plan. However, in reality, over 65 percent of the people surveyed would end up needing a long-term care plan.
New York estate planning experts often recommend that you establish both a power of attorney and a living will. The two documents are similar to one another in that they both pertain to end-of-life issues and how your health care will proceed in the event that you become incapacitated and are unable to make such decisions for yourself.
According to FindLaw, when you give someone a power of attorney , you authorize that person to make medical decisions for you if you are unable to make them yourself. You may choose to set limits on your power of attorney, allowing your attorney-in-fact to make only certain decisions in regard to your medical care, or you can grant them broad authority to handle any issue that arises in regard to your end-of-life decisions. While individual documents may vary, the decision powers typically granted to someone with a power of attorney include the ability to make decisions in regard to the following:
Doctors you can see
Medical facilities where you can receive treatment
Going to court over what medical treatment you will receive
Handling of your body following your death
However, a living will takes precedence over even the most comprehensive power of attorney. In the event that you become mentally incapacitated, permanently unconscious or suffer a debilitating injury, your living will document specifies the medical care that you wish to receive. Conversely, you may also specify which, if any, treatments you do not want to receive in the event of your incapacitation. For example, you may wish to receive palliative or comfort care so that you do not suffer pain at the end of your life, and at the same time, you may also issue a do-not-resuscitate directive that specifies that you do not wish to receive CPR in the event that you stop breathing and/or your heart stops beating.
While your attorney-in-fact has the authority to make health care decisions for you under your power of attorney, under no circumstances can he or she make a decision that violates the wishes you express in your living will.
The information in this article is not intended as legal advice but provided for educational purposes only.