Mitchell Allen is the founder and CEO of the Debt Education Certification Foundation, an organization that provides credit counseling certificates and debtor education courses for those who are filing for bankruptcy. He’s also the founder of legal services marketing agency LeadRival. He’s the author of numerous books on debt and bankruptcy.
Mitchell is not an attorney and his answers should not be considered legal advice. Please consult with an attorney about your legal situation. Full Bio
I am my mother's heir. If she dies, will I inherit her debts?
The short answer to this question is "no" for most cases, although there are still times when a child can be held legally responsible for some debt that is connected to the estate of a deceased parent.
Many individuals are left in shock once they learn about the accumulated debts of their parents after their death. This is especially true for individuals who die intestate, which is the legal term for dying without an enforceable will in place. While some oral wills can be accepted by the court, most wills must be in writing, and must be deemed valid by the court before they can be enforced. The estate probate is normally opened shortly following the burial of the deceased, during which period all creditors can present bills to the estate.
Estate Probate and the Executor
All estate settlements are opened first in probate. The estate probate period usually lasts two to six months, but states have the authority to extend that period in certain estate settlements. The open period is the time span in which creditors must submit debts to the court for payment from the decedent's estate finances.
An executor is appointed by the court for the probate period and will be responsible for any debt payments, including the sale of personal property in order to satisfy a debt. In carrying out their duties, the executor cannot be held liable for a debt unless they are a legal party to the issuance of credit.
Debt Submission and Financial Assets
Estate settlements can be complicated, especially in an intestate case, and there are many cases when an invalid debt is submitted to the court. This situation is one of the primary reasons why an estate attorney should be retained in order to ensure the rights of all parties involved, including the heirs.
The children of a deceased individual cannot be held responsible for a debt of a parent, unless the child is a signatory to a particular outstanding debt, such as an automobile loan. All debts must be submitted in the probationary time period, and delinquent submissions are usually summarily dismissed. The debts submissions are collected and evaluated by the executor and the estate attorney for potential payment from the resources of the estate.
Passing Assets Outside of Probate
Some property and assets can be transferred outside of probate, which means that they are not included in the estate's resources. Life insurance is a prime example of this allowance in instances when a policy is owned by another person and has a designated beneficiary. While the decedent may be the primary insured individual, children can also own insurance policies on their parents, and these financial resources cannot be seized or attached to satisfy the debt of the deceased parent.
Real estate that is not serving as collateral on a debt can also be passed outside of probate before the death occurs in obvious terminal situations. This can be a crucial issue in estate planning, but cannot be done after the fact if the parent dies suddenly and unprepared.
Handling Debt Collectors
The truth about estate settlement is that many creditors will attempt to collect the debt from any heir involved, especially in a bankrupt estate situation. The Fair Debt Collection Practices Act states that creditors are not even allowed to contact any children or heirs to an estate. If you are an heir to an estate, you should never respond to any attempts to collect another individual's debt.
Having an experienced and effective estate attorney can be very important in any estate settlement. Not only will all assets be disbursed according to law, but creditors who are overly aggressive toward the decedent's family could actually be sued in some situations if they persist in their unlawful collection attempts. An attorney can stop this problem quickly.