Last week’s story addressed the case of Mrs. Cohen who was niftar, and discussed whether her heirs are liable to pay the rent for the remaining months of the rental term. We mentioned that there is a dispute between the Rishonim on this issue. A further issue arose.
“If we are liable to pay for the remaining months,” asked Mrs. Cohen’s children, “from which assets are we liable to pay?”
“What did Mrs. Cohen leave after her?” asked Rabbi Dayan.
“Our mother owned no real estate,” replied the family. “She rented all her life. Since she had an aide for many years, which was a large expense, she also did not leave much. Just her furniture and a small amount in the bank. She subsisted mostly on her social security income. Occasionally, we even had to help with the bills, especially if there were large expenses.”
“Did she take out any loans in her name?” asked Rabbi Dayan.
“She did have a loan that she was repaying slowly,” replied the family. “If we add together the loan, other household bills, and the rent for the remaining months — if we’re liable — I’m not even sure that her estate will cover everything.”
“I understand,” said Rabbi Dayan.
“This brings us to the following question,” said the children, “beyond just the rent.”
“What is that?” asked Rabbi Dayan.
“When someone is niftar and leaves debts or liabilities, what is the halachic liability of the heirs or next of kin to cover them from various assets of the estate — real estate, movable items, forthcoming loans, bank accounts, life insurance proceeds, etc.? Do the heirs have any obligation to pay these debts or liabilities out of their own pocket?
“Halachah does not view the estate as an independent entity,” replied Rabbi Dayan. “Rather, the heirs immediately inherit the niftar’s assets and those assets become the heirs’ property, albeit in partnership with each other. Nonetheless, the assets carry within them a lien for the debts of the deceased and the heirs — particularly the children — have a mitzvah to pay the parents’ debts as a part of their mitzvah to honor their parents, kibbud av v’am, by fulfilling the parents’ monetary commitments from the inherited assets.
“The Gemara (Kesubos 86a, 91b) teaches that beis din coerces the heirs to pay only from real estate that they inherited, which carries the primary lien, but not from movable items, cash or loans receivable (including bank accounts, etc.). Nonetheless, there is a mitzvah on the heirs to pay also from these assets, just as there is a mitzvah on the borrower to repay his loan (C.M. and Gra 107:1).
The Geonim instituted — based on a precedent in the Gemara (Kesubos 67a) about camels in Arabia — that nowadays beis din coerces and collects even from movable items or loans receivable, since the primary reliance nowadays is on these assets, just as from real estate (Shach, C.M. 107:2; Pischei Teshuvah 107:1).
However, if the niftar did not leave any assets, the children have no liability whatsoever to pay his debts out of pocket, since the obligation of kibbud av va’em is to serve them through the parents’ own money. Nonetheless, some maintain that it is morally recommended, especially if the parent was at fault in not paying.
Furthermore, some suggest that there is a mitzvah on the beneficiaries of a life insurance policy to pay from the proceeds, as from other loans receivable (Y.D. 240:5; Rema, C.M. 107:1; Aruch Hashulchan 107:2; Pischei Choshen, Halva’ah 9:2[3]).
“Thus, if Mrs. Cohen left assets, even movable ones or a bank account,” concluded Rabbi Dayan, “nowadays there is an enforceable mitzvah obligation on the heirs to pay her liabilities from these assets.”
Verdict: Heirs have an enforceable mitzvah obligation to pay their parent’s liabilities from the inherited assets — nowadays even from movable assets, loans receivable, bank accounts, etc. However, they have no obligation to pay out of pocket, but it is morally recommended.
Based on writings of Harav Chaim Kohn, shlita
