By Lane V. Erickson, Idaho Estate Planning Attorney
At any given moment in time, all of us are involved in some type of business transaction. This could be as simple as paying monthly utility bills, or making monthly mortgage payments, or it could involve more complex things such as making or paying for credit card transactions that occur on a regular basis. It’s possible that there could also be ongoing business transactions for owners of small businesses or those who own real estate investments. In addition to all of this, it’s possible that someone could owe you money. The reason this is important to know, is because a debt that is owed to you is an asset in your estate.
To keep things simple, the best way to understand what belongs in your estate, is this. Your estate includes all the things that you own, and all the things that you owe. One of the things that you may own is the right to receive payment(s) from some other person either because of a loan that you made them, or because you sold them some item that they are paying you for over time. If you pass away at a time when someone is paying you, or when they owe you a debt, that item becomes an asset in your estate, that your estate is entitled to collect, even after you pass away.
At the Racine law office, we have a team of premier Idaho estate planning and probate attorneys who work with each client and their families to make sure their estate is protected. Our team of Pocatello estate planning lawyers have each earned the highest rankings possible on several legal rating services including AVVO, Martindale and Hubbell, and Justia. The reviews given by other attorneys, judges, and most importantly our current clients evidence the high-quality services we offer each client and their family.
The purpose of this article is to briefly describe the steps that can be taken by an estate to collect a debt that is owed to a person who passes away. This article is not designed to be exhaustive on this topic but is provided as a starting place for you to help you understand the people and the process involved in collecting a debt owed to someone who passes away. If you have questions about this for yourself or for a loved one, we encourage you to contact us so that we can talk with you about your specific circumstances and answer your questions.
Authority to Collect a Debt Owed to An EstateThe starting place, when it comes to collecting a debt owed to someone who passes away, is to describe who it is that has authority to collect this kind of debt. It is important to understand that in most circumstances, there is no person who automatically has the authority to collect a debt owed to a decedent. In other words, there is no legal default for this to occur.
Rather, authority can only be given to another person by a Court to deal with the assets of an estate, including collecting a debt that is owed. The person who receives this authority is called the personal representative under Idaho law.
A personal representative can be chosen by the decedent in their written last will and testament. If there is no written will, then the statutes in Idaho provide a list of individuals who have rankings or priorities in being appointed as the personal representative. In other words, regardless of whether there is or is not a written last will and testament, a court will have to issue an order that specifies who the personal representative is that has authority to deal with the assets and debts of an estate.
Understanding the Burden of ProofOnce we have a personal representative appointed, we now have an individual who has the authority to collect a debt that is owed to the decedent. The personal representative who is once appointed is able to collect the debt the same as the decedent was able to collect the debt before they passed away. This is important to understand because it will highlight the fact that even when alive, the decedent still had the burden of proving that another person owed them money.
The burden of proof, as defined by Idaho law, simply means that the individual who believes there is a right to collect the money, has the burden of proving that the debt existed in the first place. For example, I could not simply go to my next-door neighbor and claim that they owe me money without having some evidence to prove the fact that they did owe me money. If I do not have any evidence, and I attempted to collect the money through Court proceedings, the Court would dismiss the legal action by stating that I had not met my burden of proving that the debt existed in the first place.
When it comes to collecting a debt that is owed to an estate, the same burden of proof exists. In other words, the personal representative now has the burden of proving that the other individual owed the decedent a debt. Without evidence to prove that the debt exists, the personal representative has no more legal right to collect on that debt, than the person who died had while they were alive.
Is the Loan in Writing?The easiest and best way to prove that a debt exists is when it is in writing. For instance, when you go to the bank and borrow money, they require you to sign a loan document that describes not only the amount that you are borrowing, but also describes the interest rate, and how and when payments will be made to pay the loan back.
In a similar way, if the decedent had a written contract, or a loan agreement, or any other type of business deal that was in writing, this would evidence that money was owed to him. This kind of written evidence would allow a personal representative to collect on that debt when the decedent passes away.
The writing doesn’t have to be a formal written contract. Often, when parents loan money to children, they will write it out on a piece of paper and have the family member sign it. Alternatively, these kinds of family loans also often show up in text messages, emails, birthday or Christmas cards, and other types of documents or writings. Whatever it is, if it is in writing, then in most instances it can be relied on by a personal representative as evidence of the debt as a way of collecting the debt for the estate.
If Nothing is in Writing, is There Any Other Evidence of the Loan?But what happens when there is nothing in writing? Even when there is nothing in writing, it may still be possible for a personal representative to collect the debt from the person who owed it to the decedent. Written evidence is always the best evidence to rely on when you’re trying to collect a debt. However, it is not the only evidence that exists.
It’s possible that there may be other types of evidence that the personal representative can rely on. For example, there may be witnesses who could come forward and testify about what the loan or business arrangement was. Witnesses will be allowed to testify about the things that they heard, saw, and learned about, when it comes to debts. With some limitations, a witness may also even be able to testify about what the decedent said or did concerning the debt that was owed to them prior to passing away.
Additionally, if there is any evidence that the debtor had already made payments to the decedent, this also can be used as evidence showing that a debt existed, and that the debtor was paying the debt back to the decedent. Canceled checks, notes, ledgers, spreadsheets or any other things in writing associated with a payment, can be used as evidence to show the existence and/or payment of the debt.
Finally, it’s also possible that the debtor who owed the money to the decedent may make some admissions about the debt that is owed. Any admissions that are made by the debtor can they use as evidence to show the existence of the debt.
As we stated above, the purpose of this article is not to show all the ways that an estate can collect on a debt. Rather, this article is just a starting place to help you understand that debts that are owed to the decedent can still be collected by the personal representative. If you have questions or concerns about a debt that is owed to an estate or to a family member or loved one who recently passed away, we can help.
Enlist An Idaho Estate Planning Attorney To Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.