07 Apr Am I responsible for my mom’s debts after she dies?

Q. My mother passed away recently. She is a widow. I am the executor of her estate. I always thought that children were not responsible for parent’s debts. What if I decide to not probate her will — would I still be responsible for her debts?
— Executor

A. We’re going to assume your mom had a will and as you said, you were named executor.

You didn’t say whether the estate was insolvent — meaning there are more bills than there is money to pay them. Or are you trying to find a way to give your mom’s beneficiaries without paying her bills first?

An executor can be held personally liable for the debts of an estate if there are assets from which to pay the creditors – such as through the sale of a house or other probate asset – and the executor distributes the assets to the will beneficiaries instead, said Nancy Heslin Reading, an estate planning attorney with Reading Law Firm in Newton.

That is fraud, and technically you could end up in jail, she said, but prosecutors may not be quick to go after you.

“The distinction that tends to confuse people is the distinction between probate assets that are available to pay debts before the remainder of the estate is distributed under the will, and non-probate assets that are distributed directly to the payable-on-death beneficiaries. Creditors rarely have a claim against non-probate assets,” she said.

But if the estate is insolvent, the executor may need to go to court to get an order directing how the estate should be distributed, Reading said.

She offered this example. Say there is a house worth $200,000 in an estate and no other assets, but the house is subject to a reverse mortgage and it only nets $25,000 when sold. The mortgage is paid off at the sale. Taxes are paid at the sale. And let’s say there is $50,000 in unsecured credit card debt. The executor must not pay any creditors until he or she has a court order directing that every creditor will settle the account for 50 cents on the dollar — because there is $25,000 available to pay $50,000 in debt so each creditor gets paid half of the amount owed.

“A big problem is that executors pay off a few creditors and then seek legal advice because they don’t have any money to pay the remaining creditors. That is not the way the process works,” Reading said. “It is very problematic to go before a judge to say the executor had assets but the executor chose to pay a few creditors in full and now there is no money left for the remaining creditors.”

So do you have to pay your mom’s debts out of your own pocket? No. But you can’t pay out probate assets from the estate to beneficiaries until her debts are settled.

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This story was originally published on April 7, 2020.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.