From one of my recent cases, at the time of decedent/debtor’s death there was a substantial amount remaining due and unpaid on a judgment of restitution that had been awarded against the decedent/debtor several years earlier. As a defense in the case the argument was raised claiming that the judgment of restitution expired or terminated on decedent/debtor’s death. The answer: a restitution judgment debt or amount owing does not terminate on the debtor’s death and is collectible and enforceable following the debtor’s death. United States v. Cloud (9th Cir. 1990) 921 Fed. 2d 225. As you may know, post-death recovery on a debt owed by a decedent can be complicated, possibly requiring all of the following: a petition to open the probate of the estate, a creditor claim in the estate proceeding, a separate complaint following denial of the creditor claim, a separate action to recover from decedent’s trust and/or any trust in which decedent was the trustor or beneficiary or possibly a trustee, and a separate action against the surviving spouse for recovery on community property debt.
Dave Tate, Esq. (San Francisco – (415) 613-9713 – firstname.lastname@example.org – civil, real property, business, trust/estate, conservatorship, and elder litigation; disputes; petitions and hearings; difficult administrations; fiduciary duties; and mediations)