Does the statute of limitations trump Will?

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Does the statute of limitations trump Will?

There is a debt that is over 20 years old attached to a property contained in a Will. No attempt to collect was been made untillthe Will was probated. The statute of limitations is up. Can this debt be collected? If not, what would prevent its collection?

Asked on June 29, 2012 under Bankruptcy Law, Georgia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

No, once the statute of limitations is up, a legal action may no longer be brought to enforce the debt. Whether the property was passed via will and when the will was probated have no bearing on the SOL--all that does is potentially change the defendant (e.g. would it have been the decedent, if brought before death? the estate? the heir who took the property?) but not the fact that an action must be brought before the expiration of the SOL. Remember though that the SOL is not counted from when the debt was incurred, but rather from when the default, or event giving rise to the cause of action, occured. Example: someone had a 30-year mortgage on a property. Default occured in year 27...the SOL would not not have expired in any state, since the SOL on written agreements (like promissory notes and mortgages) is always at least 4 years.


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