Dealing with Debts as an Executor

7 Sep 2021 | Jan Atkinson
probate lawyer scrabble

Table of Contents

Do your debts die with you?

It is a common misconception that a person’s debts die with them. After you die, your debts become the responsibility of your estate. If you are an executor of an estate, you may need to deal with debts that have been left behind. Any outstanding debts owed by the deceased at the time of death, such as credit card bills or loans, must be taken into account when valuing their estate. For debts owed jointly, including mortgages or joint loans, the deceased’s share of the outstanding amount must be taken into account.

Dying with significant debt is more common than people think. According to Age UK, one in 50 people in their 70s has problem debts. Any estate may have debts to be considered, even if the deceased was wealthy, for example, it is reported that Michael Jackson accumulated around $500 million worth of debt before he died due to his lavish spending on maintaining his Neverland estate as well as poor money management and legal expenses.

Read our post: Beware of appointing your children as executors

Is the executor of the estate responsible for debt?

The executor of an estate is responsible for managing the deceased person’s affairs, including settling any outstanding debts using the assets of the estate. However, they are not personally liable for the debts unless they have acted negligently or improperly.

How to manage beneficiaries’ expectations

Of course, if an estate has significant debts, there will be less to be distributed to the beneficiaries. This means beneficiaries could receive less than they expected or nothing at all.

If the estate is insolvent and the debts are greater than the assets, then beneficiaries won’t receive any share of the estate. As an executor, it is your duty to the beneficiaries to manage their expectations by being upfront with them throughout the administration of the estate, which may mean having difficult conversations.

Paying debts and outstanding expenses

When dealing with a solvent estate, debts should be repaid as soon as possible to reduce the interest the estate needs to pay. If interest has to be paid due to unnecessary delays, you may need to account for it, as the beneficiaries will receive less as a result.

In order to deal with debts efficiently, contact creditors as soon as possible. In many cases, by the time an executor is in a position to make payment, creditors could have been chasing the money they are owed for many months and possibly even instructed debt collectors. Creditors are more likely to respond leniently if they have received regular and upfront communication from executors. It may also be possible to request that creditors freeze any interest payments whilst the estate is being administered.

Once estate debts have been paid, you will need to work out how the remaining sums should be distributed. A complex legal procedure called abatement applies wherever assets are insufficient to pay all of the legacies fully. As a result, the gifts in the Will are reduced in a certain order depending on the nature of the estate.

This must be followed if the will specifies the order in which legacies should be paid. Otherwise, debts are considered to be paid first from the residue, then from pecuniary (monetary) legacies and finally from specific legacies. If the estate has significant debts, the residuary beneficiaries could end up receiving very little or even nothing. It is unlikely that this would have been the testator’s intention, which can make for a difficult conversation.

If the estate has debts that mean the beneficiaries may receive very little or nothing, it is open to beneficiaries to vary the terms of a will. A probate solicitor can help an executor to facilitate these negotiations.

How long do creditors have to collect a debt from an estate?

Creditors typically have six years from the date the debt became due, this is known as the “limitation period”. After this time, the debt is considered “statute-barred,” meaning the creditor cannot take legal action to recover the debt through the courts.

There are exceptions to this rule, and the limitation period may vary depending on the type of debt. For example, some debts, such as a mortgage on a property, may have a longer limitation period. Also, the limitation period may be extended if certain actions are taken, such as acknowledging the debt in writing or making a payment towards it.

Administering an insolvent estate

When a deceased person’s debts are greater than the total value of assets, and therefore the money is owed to their creditors, the rules of bankruptcy apply in that groups of creditors must be paid in a specific order of priority. As executor, you have duties in respect of the creditors. You will need to liaise with creditors and debt collection agencies to negotiate the terms of repayment. You will also need to notify the beneficiaries that they will not receive any funds. You will be personally liable if money is paid to a creditor in the wrong order, on purpose or by accident. Instructing a solicitor to help with the process ensures that debts are paid in the right order and will ensure that you are protected.

What to do if you suspect foul play

Some individuals see the death of a friend or relative as an opportunity to take advantage of the person and their beneficiaries by committing fraud and helping themselves to personal possessions and money.

If an estate appears suspicious, for example, if the person that died was known for being careful with money but suddenly started spending money on credit cards towards the end of their life, you should consider whether the deceased may have been the victim of fraud. If your concerns are proven, as executor, you should seek reimbursement to the estate from the fraudster or via an available insurance policy or compensation scheme.

As an executor, it is important to be on your guard when it comes to fraud, particularly as relatives may be trying to cope with their loss, so did not notice anything untoward happening since the death.

Can an executor use the deceased person’s credit card?

Using a deceased person’s credit card without proper authorisation can be considered fraud. The executor should only use a deceased person’s credit card if they are specifically authorised to do so by the terms of the will.

If there are expenses that need to be paid before the estate is settled, such as funeral expenses or urgent bills, the executor should use funds from the estate’s bank account or other available assets to cover these costs. They must keep accurate records of all financial transactions and act in the best interests of the estate and its beneficiaries.

Should I speak to a solicitor?

While it may seem like dealing with the administration of an estate alone will save money and leave more to the beneficiaries, professional advisers can ensure that debts are properly dealt with and actually ensure that more money goes to the beneficiaries. Call 020 7485 8811 or fill in the contact form below.

 

Share this article

Contact

Contact us today

For a free initial conversation call 0207 485 8811

Email us Send us an email and we’ll get back to you






    Related InsightsVIEW ALL

    1. Constructive Trusts
      31.10.2023

      Constructive Trusts

      Property rights are not always clear-cut. Sometimes, a person who does not legally own a property could be entitled to...

      Read more
    2. house in regents park london
      15.11.2022

      Contentious Probate Case Studies

      Contentious probate involving business assets Our contentious probate solicitors act for the defendants to a claim issued to pronounce in...

      Read more
    3. Woman signing document
      25.10.2021

      Inheritance Claims CFA Success Fee Judgment

      The Court of Appeal upholds the recoverability of CFA success fees in 1975 Act claims. An individual who claims reasonable provision...

      Read more
    4. inheritance tax form
      20.10.2021

      Dispute Surrounding Interpretation of Will

      The ‘nil rate band’ offers an incentive to testators to make their will in a tax-efficient manner, maximising the amount...

      Read more
    5. fraud file
      20.10.2021

      Handwriting Expert Witness Concludes Will Forgery

      Successful contesting a will claim following testimony of handwriting expert It’s not unheard of for an individual to forge...

      Read more
    6. 25.3.2019

      How to claim for an unclaimed estate

      Finding beneficiaries for unclaimed assets The amount of unclaimed assets has nearly doubled in the last year, with the Prince...

      Read more

    VIEW ALL

    FAQs

    Can an executor use the deceased person's credit card?

    The executor should not use a deceased person’s credit card unless they are specifically authorised to do so by the terms of the will.

    If there are expenses that need to be paid before the estate is settled, such as funeral expenses or urgent bills, the executor should use funds from the estate’s bank account or other available assets to cover these costs. They must keep accurate records of all financial transactions and act in the best interests of the estate and its beneficiaries.