Who pays debts after dad’s death?

Posted Nov. 30, 2008, at 11 p.m.

Q. My father-in-law recently passed away at his apartment in Maine. My wife is his only living relative, and she has not had contact with him for over a decade. As we understand it, he left no will, and had no assets, but plenty of debt. Will my wife be responsible for his debts and funeral expenses?

A. Generally, under Maine law, a father-child relationship, whether or not there is contact, does not create a legal obligation for children to pay the debts of their father. His estate — whatever it may be — is solely responsible for his debts and obligations.

What you probably think of as his “estate” is not the only resource for collection. For claims against the “estate” as you know it, creditors must follow a certain procedure within a time limitation, usually nine months or less, depending on the circumstances. But claims may be asserted against nonprobate assets known as multiple-party accounts. These include jointly owned accounts; paid on death, or P.O.D., accounts; in trust accounts with financial institutions; and transfer of death, or T.O.D., accounts with security custodial institutions.

The claim is not against the surviving joint owner individually, but against the assets passing to the surviving joint owner. Claims against these multiple-party accounts that automatically have passed to the surviving joint owner may be made as much as two years after the date of death.

If there is any value to his estate, you may consider it good news that a surviving spouse and children are first in line under Maine law to receive a certain value of any assets before any of his creditors are entitled to have their claims satisfied. Generally, the amounts protected — known as the homestead exemption, the exempt property allowance and the family allowance — total up to $29,000, changed from $14,500 in 2003. The amount depends on the particular surviving relatives.

As for funeral expenses, if no legally liable relative has the means to pay for burial or cremation either in lump sum or on an installment basis, the municipality where he lived must pay a “reasonable calculation” of the funeral director’s cost, less any payments from any other sources. If your wife has the means, however, Maine law may require her to be financially responsible for the burial or cremation costs.

If a creditor of your father-in-law’s estate attempts to collect against your wife for her father’s debts, you should consult with a lawyer immediately. Failure to respond appropriately may cause your wife to be required to pay your father-in-law’s debts from your wife’s assets — and yours.

There are many “ifs” in this answer. It is definitely a good idea to consult with an attorney for the legal answers in your specific situation.

This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. Just go online to AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to “Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor, Maine, 04402-1329 will be forwarded to the LRIS.

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