Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
My dad had 4 children born to him. My dad passed away in 2011. He was predeceased by one child in 1999. Dad had a will made in Jan. 2007 leaving the 3 surviving children as his beneficiaries. The child that predeceased him had 2 sons. Will the 2 grandsons have any claims on Dad’s estate? Also, after the estate is disbursed between the 3 surviving children, can Medicaid or any other debt company file claim, and if so who is responsible?
Regarding the claims of the grandchildren, they most likely do not have any. Because your father had a will, the terms of that will generally override any other laws. If your father’s will is not valid for some reason (e.g. it was not executed according to your state’s laws), then the terms of the will are not enforceable and your state’s “intestate succession†statute will determine how your father’s estate will be distributed. Some states would include the children of his predeceased child, while others may not.
Another way the terms of the will may be circumvented is if the grandchildren (or their representatives) can establish that your father intended to include them in the will. Depending on the language of the will, this may be very difficult to do.
In terms of your father’s creditors and Medicaid, they most likely do have a claim on your father’s estate. State Medicaid laws generally have provisions for reimbursement for costs from the deceased person’s estate. There are some exceptions to this, such as if the family was able to keep the deceased person out of a nursing home for a specific period of time, or if the deceased person’s house is still being used by a surviving spouse or a dependent child. Generally, however, Medicaid is treated as a creditor after a person dies.
You generally cannot inherit another person’s debt. You, personally, are not responsible for your father’s debts. However, debt collectors have a right to collect their debt from a deceased person’s estate. When your father died, his will should have been entered into probate. This is a legal procedure that allows creditors, and anyone else, to file a claim against your father’s estate. The court will consider the validity of the claim (which you can challenge) and disperse the estate appropriately. As his beneficiaries, you and your siblings will only receive a disbursement after the debts have been paid. This may require the sale of assets, such as a house or furniture. If your father’s estate does not have enough money in it to pay creditors, the court will disburse the money to the creditors as fairly as possible, but you and your siblings may not receive any money from the estate. You will not, however, be liable for any additional debt the estate could not pay off.
An estate attorney can look at the will and your father’s estate and advise you as to whether the terms are enforceable as to the grandchildren and how best to protect your father’s estate in probate.
