Death, Debts and Probate: Do All Debts Have to be Paid through Probate?

One aspect of an estate’s responsibilities that probate administration handles after the death of a person, is paying all estate taxes and debts. But does that mean that all debts have to be paid through probate?


In today’s post we’ll look at death, debts and probate administration.

Who Must Pay Decedent’s Debts?

Generally speaking, when a person dies, his or her debts are paid through his/her estate. In other words, the decedent’s estate is responsible for paying decedent’s debts. This fact may come as a relief to many relatives.

There are exceptions to this rule of course.

Some of these exceptions include:

  • state law which may require a spouse to pay certain debts
  • anyone who has co-signed a loan, and
  • debts incurred as community property.

In instances where none of these (or other) exceptions apply, it is the estate that is responsible for paying the debt. If there is not enough money in the estate to pay the debt, then it simply goes unpaid.

Some Debts Can Be Avoided….

Florida probate law provides that, whether or not letters of administration have been issued, and regardless of whether a probate has been opened, a decedent’s debts can no longer be collected upon two (2) years after decedent’s death.

This two-year limitation cuts off a creditor’s rights to bring an action against a decedent’s estate to collect upon a debt. And it does not matter whether the debt has already accrued or not. If the decedent has been dead for 2 years (and the creditor did not otherwise take steps to preserve his/her claim) the debt will not be paid.

In a sense, you can look at this 2-year limitation on collecting debts against an estate as a form of bankruptcy relief for decedents.

(There is a lot more to this, of course, especially if you are a creditor, so if you want to know more, please consult with an experienced estate and probate lawyer.)

Death and Taxes

As the old saying goes, you can’t avoid death or taxes. That rule about taxes holds true when it comes to the 2-year limitation rule above because it does not apply federal taxes. Which means, whenever the IRS comes calling (or any other federal agency for that matter), no matter how long decedent has been dead, the estate will need to pay back taxes.

If you have questions or concerns or want to know more, reach out to an experienced estate and probate lawyer.

Talk to Our Estate Planning Attorneys

Our team here at SJF Law Group works hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. Our estate planning lawyers expertly guide individuals and families through the complex probate process and capably handle all aspects of the creation, administration, and settlement of estates and trusts. When you work with our Florida estate planning attorneys at SJF Law Group, you get more than just an estate plan: you get peace of mind.

As trusted probate and estate planning lawyers, we serve clients in the vibrant communities of Plantation, Fort Lauderdale, Boca Raton, West Palm Beach, and Miami, FL. We are also pleased to offer the options of both in-person and virtual appointments throughout Florida to make our services accessible no matter where you are located.

If you want to discuss your specific situations with one of our estate planning lawyers, do not hesitate to reach out to our law firm at 954-580-3690. You can also fill out our contact form.

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