Payment and Taxes

Q: How are creditors against the estate handled?Small Luke

A: Creditors are notified of the death as part of the probate process. This notification process can vary from state-to-state and can range from a letter to each creditor to a blanket notice to all creditors published in the local newspaper. Once this filing or notification has occurred, creditors have a fixed period of time (defined by the court of jurisdiction) to file any claims against the estate either by notifying the personal representative or, in some states, notifying the probate court. If the claim is approved by the personal representative, the bill is usually paid out of the estate. However, if the personal representative rejects a claim is, the creditor must sue the estate for payment.

If the estate does not have sufficient funds to pay the lawful debts to the creditors, the determination of who receives payment and in what order is usually a matter of law. Also, the personal representative may be required to sell some or all of the decedent’s property to satisfy the claims of the creditors.

Q: Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?

A: Generally not. Just as you “can’t take it with you” you just can’t make others responsible for your general debts, at least without their consent. (Otherwise a person could run up lots of debts, name his worst enemy as his beneficiary, and saddle his enemy with those debts at his or her death.)

Unless the deceased had gifted away his or her assets to someone shortly before dying, or otherwise acted in concert with them to defraud his or her creditors, beneficiaries should not have any liability to the deceased’s creditors just because they are beneficiaries. Of course, the Estate may not have anything left for them, but the beneficiaries would not be in the hole.

Of course, if the children or beneficiaries took any property or benefits from the deceased or the estate or had assumed liability for care given the deceased, or guaranteed payment, they could be held liable for some or all of the deceased’s debts separately, not because they are relatives or beneficiaries.

Q: How are taxes handled in probate?

A: For federal and state tax purposes, death triggers two events:

(1) It ends the decedent’s last tax year for purposes of filing an income tax return, and,

(2) It establishes a new, separate entity for tax purposes, the “estate.”

For Federal tax purposes, it may be necessary to complete and file one or more of the following, depending on the decedent’s income, the size of the estate, and the income of the estate:

(1) Final Form 1040 Federal Income Tax return.

(2) Form 1041 Federal Fiduciary Income Tax returns for the estate.

(3) Form 709 Federal Gift Tax return(s).

(4) Form 706 Federal Estate Tax return.

For state purposes, an executor must file the appropriate state income tax return (assuming the decedent was required to do so while living) and any state income tax returns during the probate period, plus possible estate tax, inheritance tax and gift tax returns. (In many states, gift, estate and inheritance taxes have been eliminated for most small and medium-sized estates.) The requirements for filing and payment vary widely from state-to-state.

Other taxes require the attention of the personal representative in the probate process, such as local real estate and personal property taxes, business taxes, and any special state taxes.

The Personal Representative should also be alert to the possibility of issues arising from tax years prior to the decedent’s death.


IMPORTANT NOTE: Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It’s provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for INFORMATION ONLY and that you are hereby advised and fully aware that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.