“When a loved one dies leaving property, debts and a mortgage, and if he did not have a living trust, probate is required to sort everything out.”
Probate is the process of gaining court approval of the estate and paying off final bills and expenses, before property can be transferred to beneficiaries. Dealing with the debts of a deceased person can be started, before probate officially begins.
Start by making a list of all of the decedent’s liabilities and look for the following bills or statements:
Home equity loans
Lines of credit
Federal and state income taxes
Car and boat loans
Loans against life insurance policies
Loans against retirement accounts
Credit card bills
Cell phone bills
Next, divide those items into two categories: those that will be ongoing during probate—consider them administrative expenses—and those that can be paid off after the probate estate is opened. These are considered “final bills.” Administrative bills include things like mortgages, condo fees, property taxes and utility bills. They must be kept current. Final bills include income taxes, personal loans, credit card bills, cell phone bills and loans against retirement accounts and/or life insurance policies.
The executors and heirs should not pay any bills out of their own pockets. The executor deals with all of these liabilities in the process of settling the estate.
For some of the liabilities, heirs may have a decision to make about whether to keep the assets with loans. If the beneficiary wants to keep the house or a car, they may, but they have to keep paying down the debt. Otherwise, these payments should be made only by the estate.
The executor decides what bills to pay and which assets should be liquidated to pay final bills.
A far better plan for your beneficiaries, is to create a comprehensive estate plan that includes a will that details how you want your assets distributed and addresses what your wishes are. If you want to leave a house to a loved one, your estate planning attorney will be able to explain how to make that happen, while minimizing taxes on your estate.
Reference: The Balance (March 21, 2019) “Dealing with Debts and Mortgages in Probate”