The term abate refers to ending or cancelling out. This term is a doctrine that can be used in probate proceedings. The definition of abate “To end; cancel out” means that the estate has assets that are not equal to the amount of debts in the estate.
What are examples of abate in probate?
If an executor abates probate, he or she would be using the remaining money within the estate to pay creditors that the estate owes monies to. Abate in probate refers to the reduction or elimination of a person’s interest in an estate. Here are some examples of abate in probate:
- Reduction of a bequest: If a bequest cannot be fulfilled due to the unavailability of the property, the bequest may be reduced or eliminated. For example, if a person makes a bequest of a specific piece of artwork, but the artwork is not found after their death, the bequest may be abated.
- Reduction of a beneficiary’s share: If the assets of an estate are not sufficient to fulfill all of the bequests and pay off the debts of the estate, the beneficiaries may receive a reduced share of the estate. This is known as abate by diminution.
- Disallowance of a will provision: If a will provision is found to be invalid or against public policy, it may be disallowed and the person’s interest in the estate may be abated.
- Disinheritance of a beneficiary: If a person specifically disinherits a beneficiary in their will, the beneficiary’s interest in the estate will be abated.
- Revocation of a bequest: If a person revokes a bequest before their death, the bequest will be abated.
Abate in probate can have significant consequences for the distribution of an estate, and can result in disputes among beneficiaries. It is important for a person to carefully consider the provisions of their will and the potential impact on their beneficiaries.
What if the debts are higher than the money in the probated estate?
As a rule, a person’s debts do not go away when they die. Those debts are owed by and paid from the deceased person’s estate. By law, family members do not usually have to pay the debts of a deceased relative from their own money. If there isn’t enough money in the estate to cover the debt, it usually goes unpaid and the creditors will write it off as non-collectible. This is why some creditors will want to get debtor insurance that will cover the money they owe. If someone passes a way, many times their debts will be uncollectible.
Community property states
If you live in a community property state like California and are the spouse of a decedent’s estate that owes more money than the number of assets in the estate, you are responsible for the debts of the decedent.
Who can pay debts out of the deceased person’s assets?
The executor — the person named in a will to carry out what it says after the person’s death — is responsible for settling the deceased person’s debts.
If there’s no will, the probate court may appoint an administrator, personal representative, or universal successor and give them the power to settle the affairs of the estate. In some states, that power may be granted to someone else who was not appointed by the court. For example, state law may establish another process for someone to become the representative of the estate even if they haven’t been formally appointed by the court.
« Back to Glossary Index
