Upon my death how do I physically write the actual release of debt without an attorney, so my children are not held responsible for my debts.
asked Jul 23, 2023 at 21:17
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20Laws differ from place to place. Where does the person who owes the debts reside?– ohwillekeCommented Jul 23, 2023 at 21:57
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13Are you trying to separate your assets from your debts and then only pass along your assets? Or do you only have debts and don't want that to pass on to your heirs? These are two different situations and both likely also need a location to give a complete answer.– Michael RichardsonCommented Jul 24, 2023 at 18:26
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4We do need more details. Why do you think your debts will burden your children? Is there maybe a locale were this is the case?– Neil MeyerCommented Jul 25, 2023 at 11:51
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2@MichaelRichardson remember, the OP's personal situation is not relevant here. This isn't personal legal advice.– James KCommented Jul 25, 2023 at 15:14
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3@JamesK The additional details of location and the details of assets+debt vs just debt are very relevant to giving a complete answer to the question. Perhaps "Would one be trying to separate assets from debts and then pass along only assets, or is there only debts"?– Michael RichardsonCommented Jul 25, 2023 at 20:28
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8 Answers
Upon my death how do I physically write the actual release of debt without an attorney, so my children are not held responsible for my debts.
You should hire an attorney for a few hundred dollars, so the job is done right.
Even if you do nothing and your children do nothing, your children are not obligated to pay your debts out of anything other than your own assets at death, unless they have personally guaranteed those debts. And, if they have personally guaranteed those debts, you can't release them, only the creditor can do that.
If your children owe debts to you, you can release them from those debts. But, you should hire an attorney to do so in order to avoid ambiguity. The biggest question would normally be whether or not the discharge of debts owed by your children to you should count in the process of dividing up the assets you have left after the debts you owe to third-parties at death, or not.
answered Jul 23, 2023 at 21:36
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4Your children are not obligated to pay your debts out of anything other than your own assets at death. Surely the debtors get first slice of the cake (from the estate), and the children never even receive that amount or become liable for it. Is OP asking if the debts can be written off, so the children can get their full inheritance? That would be some way to live - borrow as much money as you can and give it to your children on your death. Commented Jul 23, 2023 at 21:48
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27@WeatherVane My suspicion is that the OP thinks that debts in excess of a decedent's assets bind their heirs. This was true in Japan and much of Europe until the late 19th century (plus or minus in each case) and remains the default rule in most civil law countries, if there is not an affirmative court filing made after death by the heirs to determine the value of the decedent's estate's assets and limit creditors claims to that amount. I don't think this is a question about releasing the decedent's assets from the claims of a decedent's creditors. Commented Jul 23, 2023 at 21:55
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4@WeatherVane Indirectly. The estate has a right to collect debts from the children and is not allowed to forgiven them in most cases in an insolvent estate. The creditors are allowed to collect from the assets of the estate which include debts owed to the estate. A creditor with a judgment against the estate that is allowed as a claim might conceivably even be allowed to garnish the children for the debts that they owe to the decedent. Commented Jul 23, 2023 at 22:09
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6While your children are not obligated to pay your debts, your creditors will absolutely hound them to pay them off. I would add a frank discussion about this with your children to your estate planning if you are likely to pass with substantial debt.– ChuuCommented Jul 24, 2023 at 22:18
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4@Chuu Creditors that do so are violating the Fair Debt Collections Practices Act which could expose them to liability. A warning to the children not to pay them is appropriate, however. Commented Jul 24, 2023 at 22:42
Not possible in germany
To not inherit a debt in Germany, the heir has to declare to the state that they don't want to inherit this inheritance. This also excludes them from inheriting anything else though.
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15@ohwilleke in germany, you can't just disinherit someone from their "Pflichtteil" unless they did something incredibly bad (e.g. try to murder you). I had to deny wanting to inherit the estate of two grandparents because they were more than a million in debt and declared bankruptcy way too late in their life.– TrishCommented Jul 23, 2023 at 22:30
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9It's similar in France. After the death of my grandfather, the state asked my dad: "Your dad didn't leave you much. Just a few pictures. Do you want them?" "Yes!" "Okay, then you'll also have to pay XXXXX€ for his debts. Don't want it? No pictures for you, then! " Commented Jul 24, 2023 at 7:29
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8@user253751 the creditors usually would say "That is junk, if you dispose of it we're grateful" - but if you deny the inheritance you technically have no right to anything, especially not anything of worth.– TrishCommented Jul 24, 2023 at 10:10
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2@Trish I think technically you can disinherit your children, but they can then sue the heir for their Pflichtteil - so it should actually accomplish what op wants, the children would have to actively ask for the inheritance of the debt. Commented Jul 24, 2023 at 11:15
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3In support of @EricDuminil's point, same in Belgium. There are cases where the children refuse the inheritance, but e.g. sneak into the parental home just to get a memento from childhood, and it ties them to the estate in its entirety. Once you accept anything from the estate, you accept it all.– FlaterCommented Jul 27, 2023 at 3:45
In the united-states this happens automatically.
Heirs are not responsible for the "debts of the father", unless they willingly co-signed or something really weird is going on. They just aren't. You don't need to do anything special here.
However -- when a person dies, it forms an estate which contains the assets and debts of the person who died. That estate is a legal entity, is treated by the law much like a person, and it still owes the debt. Get it? The estate still owes the debt.
Someone would be assigned as an "executor" of the estate, and they would be responsible for continuing to manage the estate's assets - e.g. cancel cable TV at the deceased's home, make sure the electric and heating bill continues to be paid so the pipes don't freeze (to preserve value in that home), and part of that duty is to settle that debt. The executor should be making a searching inventory of the estate's assets, using probate or (if trust documents were prepared in advance) those trust documents to get control of assets, figuring out the value of those assets and liquidating (selling) them or making other arrangements.
The executor does not need to use "their own money" to do any of those things, but I could see an executor lending the estate money short-term while the executor gets access to bank accounts etc.
The debts must be paid by the estate and the executor must see to that. If the estate has cash lying around, they should simply contact the lender and offer to settle the debts using the estate's money. (not their own). Otherwise, the executor will need to liquidate (sell off) assets to raise money to pay off the debts.
It would be wise to be sensible about this; if a descendant absolutely has their heart set on a Hummel vase, and the will grants them that vase, the executor make every effort to satisfy the debts by selling other stuff than that - and likewise for anything an heir very much wants or is of sentimental value. That's just "being a decent human being" (and is independent from the question of whether the heir is; don't sink to their level).
Note that the executor is responsible for keeping the estate from being looted via self-service from heirs. If someone takes home the deceased's new $1000 iPhone that should be sold/returned to settled debts, that's on the executor to retrieve it.
And this is where the weird can happen. Anyone who "self-help collects" assets like that phone or that vase before the estate is settled - they are stepping in front of another creditor "out of turn", and they become personally liable for the estate's debts, at least up to the value of what they improperly took (and the legal fees of going after them). The more they take, e.g. if they choose to move into and live in a house with a mortgage, the weirder it gets. They can easily find "their" car repo'd and stuck with a bunch of costs. Etc.
With that warning given, it is certainly possible for the estate to sell any sentimental item to an heir at bona-fide market value as established in a manner likely to be acceptable to a judge (i.e. such that a creditor will give up and say "yeah, that's pretty close to market value". For instance, eBay "completed items" might be a valid way; a reasonably advertised auction would be; an "auction" that was advertised to no one but family would not.
answered Jul 25, 2023 at 0:32
Harper - Reinstate MonicaHarper - Reinstate Monica
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3One way to preserve sentimental items is to have the children buy them from the parent at an "estate sale" price, either prior to death or after death prior to an actual estate sale of the items without sentimental value. Commented Jul 25, 2023 at 0:36
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In the case of significant items of sentimental value which the person expecting to die has no pragmatic use for during their remaining time, wouldn't it just make sense to give them as gifts to the intended recipients immediately, prior to death, and document that? Commented Jul 25, 2023 at 22:42
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Aren't certain obligations, like timeshares, notoriously difficult for children to disown after their parents die? (Still don't understand how that is legal in the US, but I digress) Commented Jul 25, 2023 at 23:27
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2@RobertQuattlebaum the children never own it, unless they co- signed, or get tricked. The most the timeshare can do is encumber the estate until its assets are gone. But I would argue there is no valid contract, since the entire premise of a timeshare is an ongoing exchange of value: you pay but can enjoy vacations on an ongoing basis... There is no value exchange; an estate cannot enjoy that. Commented Jul 25, 2023 at 23:52
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Perhaps a better question than timeshares would be HOAs. If heirs don't inherit any debts, how can the HOA be enforced against them when they inherit a house? Commented Jul 26, 2023 at 18:45
The heirs must use the proper way in spain.
As in (almost?) everywhere else, debts are part of the estate and your heirs cannot accept your assets without accepting your debts.
But they can accept the inheritance "a beneficio de inventario"(*). This means that if there are debts, they are liable only to the extent of the assets received.
For example, you leave them a $100,000 bank account. If they accept "a beneficio de inventario" and then someone claims your $1,000,000 debt, they will be forced to pay your creditor $100,000.
If they accept the inheritance without using that formula, they might be forced to pay the full debt.
And of course, heirs may refuse the inheritance. Which, even with this formula, makes sense if they are sure that there will be no surplus (if you know that the $100,000 assets come with $1,000,000 debt, there is nothing for the heir by accepting the state other than the work of dealing with the debtors, paperwork...).
(*) The literal translation of the expression does make not sense, I would translate it as "for what is worth".
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2Not living in spain, nor expecting an inheritance: why would anyone not always accept with "a beneficio de inventario"? It seems that that statement is only ever positive for the heirs? Add-on: why is it then not the default regulation?– AnoECommented Jul 25, 2023 at 10:10
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1@AnoE I am not living in Spain either, but one reason (that I almost had to use) is that the inheritance is completely non-monetary (say, a decrepit real estate) that is officially valued at €X, and a lot of creditors with a cumulative debt of €Y >> €X. Then you would be left with a hard to sell real estate that migh actually drop in value significantly compared to the estimated worth, and a lot of creditors that want their money NOW (that is, within 30 days of settling the inheritance or so). Add a non-cooperating sibling that has to agree to the real estate being sold on top of that... Commented Jul 25, 2023 at 12:39
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1@RadovanGarabík That makes sense for why you would not want to accept the inheritance at all. But why would anybody accept it without using the formula that makes them not liable for debts of the estate in excess of assets? That's the confusing bit. Commented Jul 25, 2023 at 17:30
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@AnoE Certainly no reasons not to do so, but (AFAIK) the traditional way was the other one so you must specify it. Legal traditions do have their weight. For example, for most of Spain marriages, by default, have joint earnings unless they explicitly tell otherwise. Except in one region where the local traditional laws worked the other way; there by default spouses manage their earnings separately even today.– SJuan76Commented Jul 25, 2023 at 23:33
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@SJuan76 out of curiosity, is that region the País Vasco/Euskal Herria? That sounds very Basque. Commented Jul 26, 2023 at 12:56
There is an easy way to do this - get yourself life insurance for the amount you owe. When you die it is used to pay off your debt.
This does not work if the OP is likely to die as the premiums would be excessive.
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Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.– Dale M ♦Commented Jul 26, 2023 at 21:30
You need to specify your country.
I doubt there is any place in the world where you can get rid of the debt on your death other than by buying life insurance.
Your potential heirs will either inherit everything, including the debt, or in most countries they can refuse to take your inheritance and get nothing.
If you give a country, someone will likely tell you what your kids need to do to refuse your inheritance. And of course if you have more property than debt then they will take the inheritance and have to pay off your debt. Say you have a house worth a million and owe 100,000 to the bank, there is no way for me to get the house without having to pay back the 100,000.
answered Jul 26, 2023 at 8:25
In Japan, the heirs get the debts along with the assets, but they can opt out of getting both if they want.
Once the choice is made, it cannot be changed later even if new assets or debts are discovered.
Details may be found in the Japanese Civil Code, Chapter IV - Acceptance and Renunciation of Inheritance
I think you are getting confused with your estate. When you die, your estate inherits the debts, not your children. And you cant sign yourself out of that. The trustee then has the responsibility of paying off the debts if they are able to.
In India, traditionally, the eldest son inherits the debt of their father. But this is not legal, its in the ethical, cultural and religious sense now.
answered Jul 25, 2023 at 3:57
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I think you mean the trustee is responsible for using the assets of the estate to pay off the estate's debts if possible. I would imagine in India there is less of a culture of extreme debting (credit cards, 100% value mortgages, and radically upside-down auto and smartphone loans) such as there is in the USA. Commented Jul 26, 2023 at 23:23
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1An estate is not an heir and doesn’t inherit anything. The estate is the thing that is inherited by the heirs. Commented Jul 27, 2023 at 15:07