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Friday, June 5, 2015

What happens when a San Diegan dies with debts left behind?

  • WHAT HAPPENS WHEN A SAN DIEGAN DIES WITH DEBTS LEFT BEHIND?

In good times and in bad, San Diego will, trust and estate planning lawyers are intimately aware of their clients’ financial situations.  They see the plain facts; most people carry a heavy debt load.  Whether it is the person setting up an estate plan or one who has inherited from it, there are often questions regarding what happens to that debt.  Does money come out of the estate for medical bills?  Are adult children responsible for credit cards?  What happens to the mortgage?

As with so many aspects of law, the answers are somewhat complex, but here’s a basic look at what you and your San Diego will and estate lawyer might expect to see:

  • Mortgage Debt

When a home is inherited, its mortgage is, too.  Federal legislation forces banks to work with families who have inherited an encumbered (mortgaged) home.  Watch out though, these banks will expect payments to be made and may be resistant to providing inheriting heirs with the information they need to meet their obligations under the outstanding loan.  The exception to this, are reverse mortgages.  Reverse mortgages come due shortly upon the borrower’s death – with a maximum extension of a year from death.  Fortunately, new rules protect surviving spouses, even if they aren’t ‘on the loan.’   In California, all home purchase and most refi loans (except cash out loans) are non-recourse.  This means that in most cases an individual’s other assets aren’t liable if a mortgage is higher than the home is worth.  For Federally insured home mortgages, lenders must allow family members to acquire a property, prior mortgage free, for 90% of the homes appraised value, no matter how high the mortgage.  

  • Taxes

Taxes are sticky.  Most taxes stick to anything a person owing the taxes left behind. When it comes to paying bills left behind, taxes are usually exempt from claim period limitations and one of the highest priorities, needing to be paid before other debts.

  • Medical Expenses

This is an area where things can get a little dicey, so definitely work with a local San Diego attorney with experience in estate administration and probate to minimize the amount of medical debt left behind.  Who pays what and when is a tough question for outstanding bills.  More surprising for many families is that  if a person who has passed away received Medi-Cal benefits, those benefits become a debt on death and may need to be repaid from the estate.   If heirs receive distributions prior to Medi-Cal being repaid, they can become liable for all or part of the debt.  Again, the responsibility for medical and nursing home expenses is very complex and should be taken to a lawyer.

  • Credit Cards

As long as you aren’t a co-signer on a credit card, you aren’t personally responsible for them.  Remember, being an authorized user does not necessarily make you a co-signer. The companies can call the executor in order to collect from the estate, although there is a finite time frame in which to do so.  California law has procedures which can be followed to shorten the amount of time a person’s creditors have to come forward after they have died.  In addition, a good estate administration attorney can often get credit card companies to negotiate down outstanding balances in order to get a more certain and immediate payment.

  • Duty to Not Pay Unenforceable Claims

If you are not the only heir, remember that you must exercise due diligence in confirming a debt before you can pay it.  Remember, too, that when a debt is paid for by the estate, it lowers the overall amount that is left to be inherited.  It is amazing how many companies are unethical in their collection efforts.  Many pursue claims they know are no longer legally enforceable and sometimes, purely fictitious claims show up. 

  • Everyone Needs Help

Some debts must be paid from an estate.  Others do not.  Unfortunately, unethical collectors can haunt family members and it is hard to know what is what without good legal help.  A good San Diego will, trust and estate planning lawyer can help you deal with these issue properly when the time comes, or help your family proactively plan ahead to limit the value of your estate exposed to creditors using legal tools such as trusts.  To discover all of your options when dealing with someone’s debts after they have died, contact our centrally located Weissler Law Group office at (619) 281-1888


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The Attorneys of the Weissler Law Group assist clients in San Diego, California as well as in: Coronado, Pacific Beach, Del Mar, Solana Beach, La Jolla, Del Cerro, La Mesa, Lemon Grove, Santee, El Cajon, Rancho Bernardo, Poway, Escondido, National City, Spring Valley, and Chula Vista.



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