Estate Debts and Claim Limitations

Sample medical bill

As part of taking inventory, an estate executor must look for and validate the debts of the decedent's estate.

Notice of Death Publication

If the estate is going through probate, the executor must typically publish a notice of death in the local newspaper where the decedent lived (see Sample Estate: Task - Publish Notice of Death). The purpose of this notice is designed to inform potential creditors of the death, and while details vary from state to state, creditors typically have 3 to 9 months to contact the estate about any debt claims. If a potential creditor misses the claims deadline then the estate would not typically have a legal obligation to pay the debt (see Sample Estate: Task - Debt Claims Expired). Note that debts to the federal government are often an exception to this rule.

Even if the estate is small enough to avoid probate, the executor may still wish to publish a notice of death, to protect the estate from future debt claims, which could be quite problematic if the estate assets have already been distributed.

CA Specifics

In California, a potential executor must schedule a Petition for Probate (Form DE-111), then publish a notice of the upcoming hearing by placing the notice in a newspaper of general circulation in the city or county where the decedent resided at the time of death. This notice should be published at least 15 days before the Hearing, and it should appear 3 times before the Hearing, with at least 5 days between the first and last publication.

The potential executor must also directly provide notice of the Hearing to anyone named in will in any executor or beneficiary capacity, and anyone who would normally inherit if there were no will, at least 15 days before the Hearing. You can use Notice of Hearing Form DE-120.

Finally, the executor must also individually notify known creditors, or reasonably ascertainable creditors, within 4 months of being appointed executor, or within 30 days of learning of the creditor, whichever comes later. You can use Notice of Administration to Creditors Form DE-157, and you do not need to notify a creditor who contacts you in writing and is aware of the death.

See CA Prob Code § 8100-8125 and CA Prob Code § 9050-9054 for relevant statutes.

Informal Debt Claims

There are certain debts you will quickly discover as you go through the decedent's mail, or are contacted by creditors, such as insurance premiums, credit card balances, utility bills, and so forth.

If desired, you can also run a credit report on the deceased, perhaps discovering debts about which you would otherwise be unaware. You may be able to get the credit report for free if and when you notify the credit reporting agencies of the death.

You don't necessarily have to pay any of these debts unless the associated creditor makes a formal claim against the estate, potentially in response to the notice of death, but most executors will opt to do so in an attempt to "do the right thing". Moreover, failing to pay some of these ongoing bills may result in unwarranted harm to the estate (such as foreclosure or frozen pipes bursting): see Resolving Debts: Ongoing Bills.

In any case, these bills will likely continue to arrive over time, so it will likely be several months before you have a complete picture of all debts.

Statute of Limitations and Claims Deadlines

All states impose statutes of limitations on debts, meaning that after a certain amount of time passes from a debt's due date, the courts can no longer require the debtor to repay the debt. Typically, these time limits range from 3 years for open accounts (such as credit cards) to 10 years for contract debts.

When someone dies, these statutory limitations are often both extended and shortened. They can be extended in that the expiration period is often put on hold for a few months, so that everyone has a chance to get organized and sort things out. This "hold" is officially called "tolling" the debt, but is not usually a major factor since statutory limits are measured in years.

However, statutory limits are also shortened in that almost all states have mechanisms for the estate to establish a time limit for claim submissions measured in months, not years, and these shortened limits overrule any statute of limitations (in other words, even if a statute of limitations implies that a debt would still be enforceable, it will not be enforceable if the estate limits have kicked in). The section above on Notice of Death Publications explains how the estate can limit the exposure to debts.

Note that debts which become time-barred (i.e., become unenforceable due to the statute of limitations), are considered "cancelled" by the IRS, and generate a taxable event, which the creditor may report to via a Form 1099-C (see IRS: Taxes on Canceled Debt).

CA Specifics

In California, a creditor has at most 1 year after the decedent's death to make claims against the estate (see CA Civ Pro Code § 366.2). Within that year, claims can be made until the later of 4 months from the date the executor was appointed and received his or her "Letters", or 60 days after a notice of estate administration was delivered to the creditor (see CA Prob Code § 9100).

Within these limits, California maintains a 4-year statute of limitations on general debts (see CA Civ Pro Code § 337 and CA Com Code § 2725).

See also Taking Inventory and Resolving Debts.

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