Father died with no will, no property, and no life insurance.

My father recently passed away. He had no will, no life insur, no property, numerous med bills, and was on welfare. There is a chckng acct, but I’m sure there isn’t much money in it. He was divorced and I’m the oldest child. His parents are still living. What happens if no one fills out the letters of admin to be the personal representative of the estate? Am I then required to do it since I’m the oldest child? If his parents decide to apply are they required to pay the funeral expenses first (if the funeral is paid for by the county) or can the choose the order that they pay the creditor?

Asked on June 27, 2009 under Estate Planning, South Dakota


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I am sorry for your loss.  From the way you phrased your question it appears that your Father left no assets and only debt.  Is that true?  If it is, then there is no Estate to file or the purpose of passing down his property or to liquidate to pay the creditors.  According to the South Dakota Bar:

"A creditor of the decedent must be paid from the assets of the estate before there is any distribution of the estate property to the heirs and beneficiaries. Determination of valid debts and payment of those debts is usually done during the probate proceedings. If there is money owed to the estate, these funds are usually collected during the probate proceedings."  See http://www.sdbar.org/pamphlets/probate.shtm

If there are other assets that can be sold to pay the debt then check with the County as to the funeral expenses.  Sometimes they have "priority" to be paid back.  You really should take all the information to an estate attorney for consultation to determine how to proceed.  If there is no estate there is nothing for the creditors to go after but it is hard to determine that from the information given.  

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