Experienced Probate Attorneys Helping Families with Estate Obligations in Florida
Almost everyone carries some kind of debt. Whether it’s credit card debt, student loan debt, a mortgage, or a car loan, debt has become part of the American way of life. But what happens when a person dies and leaves debts behind?
Dealing With Creditors in a Jacksonville Probate
While the exact rules and regulations vary by state, in Florida, a deceased person’s estate has some obligation to pay debts the deceased left behind. The executor, called a personal representative in Florida, should proceed carefully in this matter because he or she could be held personally liable if a claim or debt is paid that isn’t valid or if the estate’s creditors aren’t paid properly. Furthermore, creditors have only a limited time to make claims against the deceased’s estate.
The Estate Must Notify Creditors of the Death
While a deceased person’s estate has an obligation to at least try to pay valid debts that person left behind, creditors must file their claims within a certain period of time after the death. So that creditors can file their claims in a timely fashion and have the best chance of getting repaid, the estate must notify creditors of the death right away.
In most jurisdictions, a personal representative or executor is required to publish a notice of death in the newspaper when opening probate, or shortly thereafter. In some jurisdictions, the estate also has an obligation to notify known creditors of the death directly and in writing.
Once they have been informed of the death, creditors usually have only a short time to file a written claim of debt with the clerk of court or executor. Often, the statute of limitations for this will be only a few months. In Florida, the creditor period is open for three months after the first publication and 30 days after direct service.
The Personal Representative Must Carefully Review Claims of Debt
When the personal representative receives a claim of debt from one of the deceased’s creditors, he or she must proceed carefully. If the representative pays a debt that’s not valid, the estate’s beneficiaries could hold him or her legally responsible. If the decedent left paperwork related to the debt in question, it will be pretty easy for the executor to verify the validity and amount of the debt.
However, creditors may make claims that aren’t represented in the deceased’s records. The personal representative must then carefully investigate these claims to determine their validity.
The Personal Representative Must Determine Whether the Estate Is Solvent
As part of the process of discharging the decedent’s debts, the personal representative of the estate must account for all of the estate’s assets. If the estate has enough assets to pay its creditors’ claims, it is solvent. A solvent estate has an obligation to pay all valid claims from creditors. Whatever assets are left over will be distributed to the estate’s heirs.
If the estate does not have enough money to pay off its creditors’ claims, it is insolvent. An insolvent estate may still be obligated to make payments to creditors. However, laws about the distribution of property in an insolvent estate vary by state. In general, the estate is obliged to pay any federal and estate taxes it owes first; after this come probate expenses, funeral and last illness costs, and finally, other creditors. Usually, courts will order an insolvent estate to liquidate illiquid assets in order to pay creditors what they’re owed.
If, at any step in this process, the estate doesn’t have enough funds left over to pay off the creditors in the next group, the money will be prorated to the creditors in that group. For example, let’s say the estate has enough money to pay federal and estate taxes, probate costs, funeral fees, and final medical expenses, with $10,000 left over.
However, there are two additional general creditors. Creditor A is owed $15,000, while Creditor B is owed $30,000. The remaining money will be divided between them, with Creditor A getting one-third of the money and Creditor B getting two-thirds. In this scenario, beneficiaries will get nothing.
It’s also possible for creditors to receive nothing from the estate if the estate is insolvent. If the estate runs out of money after paying any creditor group, creditors in lower priority groups will get nothing. For example, if the estate finds itself out of money after paying federal and estate taxes, probate costs, and funeral fees, then medical creditors and general creditors will get nothing. In this scenario, too, beneficiaries will get nothing.
To complicate matters, certain estate assets may be considered exempt from creditor claims. It takes an experienced probate attorney to review each asset carefully to determine whether the asset can be used to pay creditors or the costs of the estate, or whether that is a protected asset.
The Estate Can Defend Its Decisions in Court
If the personal representative of the estate denies a creditor’s claim, the creditor has the right to take the estate to court and contest the personal representative’s decision. The personal representative equally has the right to defend his or her decision in court. Just as with the initial filing of a claim of debt against the estate, there are strict statutes of limitations for filing a lawsuit for payment in probate court.
If the creditor files a lawsuit for payment in probate court, the judge will decide whether or not the estate should pay the claim. If the claim later turns out to be invalid, the personal representative will not be held personally responsible.
For the most part, heirs and beneficiaries can’t be held responsible for a deceased person’s debts, unless they hold the debt jointly with the deceased person.
Contact the Probate Attorneys of Beller & Bustamante, P.L., Today
If someone close to you has died and creditors are contacting you, direct them to the personal representative or executor of the estate. A probate lawyer may be your best option for discharging the debts of a loved one’s estate. When in doubt, call a consumer law attorney or a probate attorney for help discharging your deceased loved one’s debts.
The probate lawyers at Beller & Bustamante, P.L., have the knowledge and experience you need on your side to navigate situations like these. To schedule a consultation, call
us today at 904-288-4414, or use our online contact form to set up an appointment.