Probate Creditors: Are you liable for your deceased loved one’s debts?

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Probate Creditors: Are you liable for your deceased loved one’s debts?

documents from Probate Creditors

When a loved one dies, one of the first questions spouses and children have is “Am I liable for the deceased person’s debts?”

The answer, generally, is “no.” Heirs and next of kin do not have personal liability for the deceased person’s debts.  However, the deceased individual’s estate may be liable for properly-presented claims.

In Ohio, a creditor of a deceased person has 6 months from the person’s date of death to formally present a claim for payment.  The claim presentment procedure is specifically addressed in the probate statutes.  If the creditor does not explicitly follow that procedure, the claim is not valid, and the estate is not liable to pay the debt.

Ohio law provides that the claim must be presented to the Executor or Administrator of the estate within 6 months of the person’s date of death.

If there has been no Executor or Administrator appointed, this claim cannot be presented.  Even if someone is named as Executor in a Will, that person does not actually become the Executor until appointed by the probate court.

Often, a probate estate will not be opened until more than 6 months after the individual dies.  In this case, the creditor would need to apply to initiate probate proceedings on its own.  The creditor would become an administrator and would present it claim formally through the probate court.

Unless the debt is significant, many creditors do not take the time or incur the cost to initiate probate proceedings on its own.  Instead, creditors scan the probate records and present claims to estates opened by the deceased person’s family.

This procedure for presenting claims after a person dies is largely unfavorable to the creditors.  Several Ohio court cases have ruled against creditors who did not explicitly comply with the procedure described above.  For example, mailing a bill to a family member who happens to be nominated as Executor but who has not yet been appointed Executor by the probate court is insufficient for the claim to be valid.

These types of probate claims are typically unsecured debts (credit cards, personal loans, medical bills).  If a debt is secured (mortgage, automobile loan, etc.), the creditor will have authority to repossess or foreclose on the property securing the debt.

The 6-month claim period may not apply to a surviving spouse if medical bills are involved.  Ohio law requires spouses to provide necessary items and services to each other.  Necessary services often include medical bills, especially in the context of skilled nursing facility costs.

The law states that when one spouse cannot provide necessaries for himself or herself, the other spouse must provide those necessaries.

Often, if an outstanding amount is owed to a nursing facility or other medical provider, the creditor may seek repayment from the surviving spouse under this spousal necessary doctrine.  If the spouse refuses to pay the outstanding bill, the nursing home or other medical provider may file a lawsuit against the surviving spouse.

Although Ohio law requires spouses to provide for each other, there is no further familial duty.  In other words, children do not have a legal obligation to care for or provide care for a parent.  If there is no surviving spouse, children or other next of kin will not be personally liable for the deceased person’s medical expenses.

Navigating probate can be challenging.  Most of our probate clients have either never been through the probate process or were involved in it many years ago.  It can be frustrating to try to understand what court filings necessary and which steps are to take next.  If you are facing a probate situation, seek legal advice from an attorney who is familiar with the processes and can relieve some of the stress that occurs when a loved one dies.

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