Scottish Law.

[anneasquith]

hypothetical question, mr,.mc.tavish has made a will leaving his property to his daughter, following mr,t, death is the daughter liable for any debt her father has, eg overdraught, credit card charges, mr, mc, tavish will not be leaving any cash . TIA

[Buenchico]

To the best of my knowledge, the same principles apply both in England and in Scotland.

i.e. the estate of a deceased person is liable for any debts incurred by that person. If Mr McTavish doesn't leave any monetary assets but does, for example, leave property, then the debts must be settled from the sale of that property before the rest of his estate is distributed in accordance with the terms of his will (or in accordance with the intestacy rules, as appropriate).

However a deceased person's estate can never 'go negative'. If Mr McTavish's debts exceed the value of his estate then the whole of his estate must be used to repay his debts (pro rata) but any remaining debt can't be passed on to his family (or to others).

[anneasquith]

so die and your debts go with you is rubbish ?

[Mamyalynne]

Not really Anne - If he lived in rented and owned nothing (or next to nothing) then there is nothing to recoup the debts against.

[anneasquith]

he owns his own property, no mortgage, mama.

[Mamyalynne]

Well then Chris's answer stands, but debts will die with you if you have nowt was my point.

[anneasquith]

thank you both. need to call mr. mc. tavish asap

[Mamyalynne]

You do.

[Buenchico]

As I indicated above, Mr McTavish is a 'legal entity' capable of owning assets or owing debts. Upon his death a new 'legal entity' (called 'the estate of Mr McTavish') is created, acquiring both the assets and debts of Mr McTavish.

The executors of Mr McTavish's will (or those responsible for distributing the estate under the intestacy rules) must settle any debts from the estate before distributing the residue.

Of course someone else could settle those debts first, so that the estate doesn't have to pay out. For example, if Mr McTavish left his house to his daughter (and the daughter was keen to move into the house) she could pay off his debts to ensure that she could have the house (rather than selling it to pay off the debt, with the daughter only getting the residue).

[Peter Pedant]

Anne if your analysis is correct which it aint -
I mortgage up to the hilt, and give da money to my heirs and then when I die the mortgage 'fails' and the property goes to them unmortgaged...
hooray !

Och I knew the Scots were canny....

clearly the debts are counted against the estate - and the estate pays 40% tax over whatever (325k I think). It is hard to die without assets although Maxwell managed it didnt he ?

[Peter Pedant]

anne are you gonna shriek down the phone

dont die yet ! Muster Muctarvish ! Hoang on their baby, you need to re-write your will....

[douglas9401]

Does Anne originate from Laos or Vietnam, Peter?

[anneasquith]

thanks for you input peter !!!!!!!!!!!!!!! :)

[FredPuli43]

A mortgage is fixed on a specific property such as a house, and the lender can therefore force a sale of it, to recoup their money, if the payments are not kept up. That debt remains to be paid by the estate on death, so the executors or administrators must sell the property, keep up the payments from the monies left in the estate, or let the lender force a sale. It is treated as all other debts of the estate are, and, if the estate has not got sufficient funds left by the deceased to pay the debts , that's an end of the matter. As Peter says, even the Scots aren't that canny that the mortgage ceases to exist when the borrower dies !