One of the many reasons that people are interested in avoiding Florida probate has to do with creditors. Probate is a court process that occurs after someone has died owning property (real estate, bank accounts, etc.) in their name only. In order to transfer that property to their heirs or beneficiaries, a probate must be opened, all the assets must be identified, someone is appointed to administer the estate (i.e., the Personal Representative or Executor – same thing), the debts of the decedent are paid, and then the assets are distributed to the beneficiaries or heirs. [pullquote_left] Medical bills or a credit card that was solely in the name of the decedent, the surviving spouse is not liable for that debt. [/pullquote_left]
One of the main reasons for opening a Florida probate is to make sure that all creditors of the decedent have been paid. In Florida, creditors of a decedent can only be paid if there are probate assets. This means that, if you have assets that avoid probate such as anything with a beneficiary designation (i.e., like life insurance, retirement accounts, etc.) or property owned jointly with another person, creditors cannot go after those assets. This is important to understand because, frequently, creditors of a decedent (especially credit card companies) will call the decedent’s loved ones and ask them who will be responsible for paying off the credit card debt (making the family think they are liable for the debt when they are not).
It is also very important to understand that a surviving spouse is NOT responsible for the debts of the decedent so long as the surviving spouse did not accept responsibility for the debt. Therefore, if a credit card was solely in the name of the decedent, the surviving spouse is not liable for that debt. The surviving spouse is also not liable for the medical bills of the decedent spouse.
If you have a family member who has passed away, and you are unsure of your rights or obligations, you should contact a Florida probate attorney to discuss your rights and obligations before you speak to any creditors.