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Debt Management in Estate Planning

What if a client burdened with substantial debts or liabilities from their business unexpectedly passes away?

Amidst the financial strain since the COVID-19 pandemic, families and businesses are grappling with mounting levels of debt. When considering estate plans, a crucial concern arises: what if a client burdened with substantial debts or liabilities from their business unexpectedly passes away? Navigating debts of a decedent in estates requires careful planning.

Handling claims against an estate can be either simple or complex. Simplicity prevails when the estate is solvent, while complexity arises when it is not. Here, we will focus on estates in the U.S., as estate administration under Civil Law differs significantly. Moreover, differences within the U.S. may exist from state to state. Therefore, seeking guidance from a local estate planning or asset protection advisor is advisable.

An executor, or personal representative, of an estate bears the responsibility of managing both the assets and debts of the estate. Typically, this process involves:

  • Creating an inventory of the decedent's debts;
  • Assessing their validity; and
  • Fulfilling the payment obligations.

Determining the validity of debts often proves straightforward: either the decedent received services or possessed goods at the time of their death. However, the validity of other debts, such as those based on verbal agreements, may be less clear-cut.

When an estate is insolvent, claims that hold priority are paid first, following a specific order, which includes:

  • Administrative expenses: Covering costs and fees associated with estate administration, such as legal and accounting fees, as well as expenses for securing and appraising estate assets;
  • Reasonable funeral expenses;
  • Debts or taxes with preference under federal law;
  • Reasonable and necessary medical Bills from the last illness of the deceased;
  • Debts and taxes with preference under state Law;
  • Reimbursement of benefit payments (e.g., Medicaid in the U.S.); and then
  • All other claims.

Debts are settled using the assets of the estate in reverse priority, starting with assets passing by intestacy. If a will exists, debts are paid from assets passing under the residue clause, then assets passing under a general devise, and finally assets passing under a specific devise. For instance, if a will states, "I give my coin collection to my nephew Joe, then I give $50,000 each to my nieces and nephews, and then the rest and remainder of my estate to my siblings," the assets' order of use would be the rest and remainder, followed by the cash for the $50,000 gifts, and finally, the coin collection. This is how unsecured debts are handled.

Secured debts, such as a mortgage or car loan, follow a different process. In such cases, the creditor, usually a bank, can foreclose on the debt (usually a note) and force the sale of the asset to settle the debt. The personal representative has the option to pay off secured debts but is not obligated to do so, except when the asset's sale fails to cover the secured debt.

Other types of claims can be made against the estate, such as statutory rights of a surviving spouse or dependent children. These claims only apply to probate assets. Non-probate assets, like those held in an irrevocable trust, may not be subject to estate creditors' claims if they possess a spendthrift or other asset protection clause.

Creditors must follow specific processes when making a claim on the estate, which vary from state to state. Failure to adhere to the proper procedure results in a disallowed claim. For unsecured debts, creditors must file the claim in the appropriate forum within one year of the date of death. In the UK, publication of a notice is necessary to inform creditors of the running short statute of limitations, while in the U.S., publication of notice regarding the estate's administration is required, rather than a specific notice to creditors.

Various methods exist to safeguard assets from creditors' claims in an estate, including purchasing life insurance to transfer the risk of unexpected death. It is crucial for planners to be aware of any existing or potential debts clients owe so you can incorporate that information into the plan for how their personal representative will handle debt repayment. The approach taken will depend not only on your client's assets and desires but also on the jurisdiction where their estate will be administered.


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