Can creditors make claim on the will first?

2 answers | Last updated: Nov 07, 2016
A fellow caregiver asked...

My elderly parents willed me their home (mortgage paid for); however, they have unpaid balances on their credit cards which are not insured. If death occurs for both of them, can creditors jeopardize the will that's already written out? And, could they take their home which is still under their name? I'm executor of their will.

Expert Answers

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

It is not really a matter of jeopardizing their Will, but creditors have a right to be paid from the assets of an estate before the remaining assets are distributed to the beneficiaries named in the Will.  As executor it would be your duty to see that their debts are paid from their assets before the distribution of the assets to the beneficiaries.  In regard to the house, creditors could force a sale of the property unless other arrangements were made to satisfy the debt.  At any such sale, the balance left of the sale over and above the amount owed to creditors and the cost of the sale would go to the beneficiaries of the Will.  Generally, this is not required, however, as other arrangements can be made, such as the taking out of a equity loan secured by the property to pay the debt.

Community Answers

A fellow caregiver answered...

Your parent should consider putting the house in a trust for you not just the will. This should saveguard the house