Can an estate be forced to sell real estate to cover debt if the home was bequeathed to an adult child?

Question

My mother died in West Virginia. I am her son and the executor of her will, in which the home was bequeathed to me. The estate has insufficient funds to pay medical and other debts. Can WV probate court force me to sell the home to pay the medical and other debts? Can liens be placed on the home prior to, or after probate closes (and the home, I presume, will become mine)?

Answer 1

I am sorry for your loss, and that you have to deal with bills on top of everything else.

The quick answer is yes, you might have to sell the house to pay your mother's bills.

As you probably know, the estate includes both your mother's assets (cash, house, car, and so on) and her debts. In general, to "settle the estate," the executor must pay all debts before she gives away any of the assets.

Legal Aid of West Virginia has a helpful website about West Virginia probate law. Here is what it says about this issue:

If you can’t pay all of your family member’s creditors from the person’s available money, you must sell off the family member’s property and pay the creditors in the order listed in W. Va. Code § 44-2-21; W. Va. Code §§ 44-1-18 to -20. You may have to sell the family member’s land or home in order to pay creditors. W. Va. Code § 44-8-7.

Added after comments

Under WV law, it does not matter that you were bequeathed your mother’s house. The law gives debtors priority over heirs. This means debtors are paid before any heir. Heirs are “paid” from whatever is left in the estate after the debts are paid. So if the estate is underwater, if it owes more than it is worth, there will be nothing left in the estate to give to the heirs.

As executor, your job is to carry out West Virginia law.

The nuts and bolts of what happens if you refuse to the sell the house depends on WV law. You might be able to find the details by searching on line, but your best bet is to probably to talk to an attorney who specializes in WV probate law. An attorney will know both the law on the books, and how that law is implemented. They will be able to advise you on what options you really have, and the costs and benefits of those options.

If the estate is underwater, you could buy the house from the estate. If you do that, you will not be liable for any of your mother’s debts; those are owed by the estate. Depending on how the sale is handled, this may be your (financially) best option.

(Depending on whether the price covers the debt, and on what other heirs are bequeathed, the court might worry about you selling yourself the house at a discount price, and thus look at the sale very carefully.)

Answer 2

You have to pay the debts from the assets that comprise the estate, to the extent that it is possible, but the executor has some discretion in how that happens. This law determines what order debts are to be paid in: funeral expenses are high on the list, last-illness debts are lower but still ahead of "everything else". §44-1-17 though -21 cover assets to be sold or not sold, but except for the family food and fuel exemption, anything can be sold, and debts must be paid. There will not be any debts of the estate after the estate is closed, more or less by definition. There is a Final Settlement form where you say what was in the estate and what claims there were, and how the property was disbursed and the claims satisfied. If there are still debts, you have to pay those debts and can't e.g. sell the house and divide the procedes without paying those debts. (By "can't", I mean that as executor you get in legal trouble).

You will know what those debts are because creditors have 60 days to file a claim. You have to publish a notice, in a form prescribed by law, that basically says "X died, send your claims here" (read the statute to get it right). If somebody comes along a year later and demands payment, they are out of luck.

A creditor can't just "put a lien on a house", although a contractor who did work on the house could put a mechanic's lien on the house if they were not paid for their work. The IRS can put a lien on your house for non-payment of taxes. But if a bank lends someone money to run a business and they don't pay off the loan—unless the loan was secured with the property as collateral—they can't just put a lien on the house. Nevertheless, as executor, you have to pay that debt at least to the extent that there is any property at all in the estate.

Answer 3

Yes, in theory, but pursue other options too

Yes, in theory, the estate would have to liquidate property to cover those debts. In theory.

First, it doesn't necessarily need to be the house. If other assets are saleable, that will suffice.

Second, the estate does not necessarily need to sell the house. It could, for instance, mortgage the house to obtain cash to settle the debts. Who would write such a mortgage? Someone friendly - a family member - maybe even the person to whom the house is bequeathed. It also may be possible to structure a deal with a commercial mortgage wherein the estate takes the mortgage (with you as co-party) and then you take possession of the house with assent of the mortgage writer. Now you own a house, albeit with a mortgage.

Haggle those debts mercilessly - especially medical debt.

Many firms, especially those who function in the elder-care/end of life business, "know the drill". For instance my grandparents both got medicines from a company which is a darling of nursing homes. So most of their business is geriatric. When my grandmother passed, they cheerfully settled her outstanding invoice for half, without even putting up a fight - the estate was fully attachable, they didn't even try. When her husband passed, they just walked away and settled for $0. This is old-hat for them.

Many other medical bills are insanely "puffed up" for business reasons. Hospitals' bread-and-butter business is in-network insurance work, where they are locked down by contract to "Reasonable, Usual & Customary" industry rates, such as $47 for a blood test series or $70 for a COVID-19 test. However, when dealing out-of-network or with the uninsured, the prices suddenly puff up to $320 (happened to me) for a blood test or $2,315 for a COVID-19 test. The hospitals have no realistic expectation that a cash patient will pay this.

They do it a) to profiteer off medical tourism (wealthy people in the third world think America has a wonderful healthcare system; and they can and do pay those crazy numbers). Many people who can pay won't put up a fight, and it's easy money - like taking candy from babies. (think about that before you scream "morals"). For those who do fight, it gives them a ridiculously highball number to start with; "I'll knock it down from $2315 to $1000 if you pay today for that $70 COVID test". (again, anyone care to argue a moral duty to pay $2315?) For the vast majority of customers who can never pay, it allows the hospital to puff up their paper losses for fundraising reasons. "We donated $1.2 billion of services to those who couldn't pay" (read: after we burned their credit rating to the ground trying to collect).

All of that to say, you must look at those medical bills not at all like a real number, but as an absurd highball number from which you start negotiating. But you have to handle that creditor by creditor: I saw $105 bills for a doctor's visit with an independent doctor; that guy was clearly not profiteering, so I paid that in full).

And you can haggle down any creditor, and be ruthless!

The creditor cannot simply attach a lein on the estate; they have to go through a huge rigmarole of dunning, filing suit, battling with your lawyer... they know perfectly well that if you dig in your heels, they will probably spend $5000 and possibly $10,000 just getting to a judge's verdict, and that only allows them to start another long road: the collections process, and they have to grind through all of that (possibly another $5000) to finally attach that lein on the house.

So figure that into your offers: if the estate owes a credit card $7000, offer to settle the debt for $500. It's lowball, but you may both find a happy number in the $1000-3000 range. Creditors do this all the time.

A hospital could take their outlandish bill down 75% or more if you are extremely persistent.

To be clear: They cannot sue you or attach debt to you, in any way whatsoever. So they can scream and howl all they want; they cannot do anything to you; they can only target the estate. And that's a long, long road to payback, for them. Never assent to take on the estate's debt personally - that's just suicide.

• Well, there might be a case for personally accepting some estate debt as part of a plan to eliminate all the estate's debt and leave you in a good position, but that is so complex and dangerous you must only do it on advice of your lawyer who is fully in the loop. The asset protection questions are too complex - will this house be homesteaded, will you be converting secured debt to unsecured, etc. You need a pro.

Answer 4

Yes, you can surrender your duties as executor to the state. However you can forget about anything that may have come to you after debts are paid, as the state's lawyers expenses will eat up everything.
It might be worth it, however, just to be rid of the mental stress, the huge amounts of time and paperwork, and the risk of getting something wrong and getting sued by somebody. It took me two years each to settle/ probate two different relatives estates and they were relatively simple. What a grind.

Answer 5

The simplest case would be that you used all the cash and sold all valuables to pay for debts, and now the remaining estate is $10,000 debt and a $200,000 home that you are supposed to inherit.

You can clearly satisfy the debt, therefore you have to. The possibilities are: You convince someone (maybe yourself) to pay the debt, and you keep the home. Or you sell the home, try hard to get the best price, pay the debt and keep the rest. If you refuse, the creditors will go to court, which forces you to sell the home or sells it itself, not trying very hard to get a good price. So forcing you to sell is possible, but would be the courts last choice.