Can a promised to pay be enforceable against an estate?

UPDATED: Oct 1, 2022

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Can a promised to pay be enforceable against an estate?

If a person promises to pay someone’s mortgage but dies before doing so, is

the promise to pay the mortgage enforceable against the estate?

Asked on June 17, 2018 under Estate Planning, Georgia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If it was a written contract to pay and the other side honored its obligations, then it can be enforced against the estate. But if it's not a written contract, the promise is unenforceable. 
There are three things required for enforceability:
1) It must be a contract. A contract requires mutual "consideration"--that is, each party must give or promise something of value to the other. For example, say that A agreed to pay B's mortgage while B in turn either paid A money for that promise (e.g. A needed money now, and agreed to pay a mortgage later in exchange for money now) or gave A something else of value (like some other property; like a patent or trademark; like the right to collect or receive money from a third party; etc.), then you could have a contract. But if A simply promised to pay the mortgage without receiving anything in return, that is a "gratuitous" (or freely made) promise and does not form an enforceable contract: A, or A's estate, can simply decide to not honor it at will. Contracts are enforceable; non-contractual promises are not.
2) It must be in writing. Agreements to pay another person's debt must be in writing--oral agreements to pay another's debt are not enforceable.
3) The person whose mortgage is to be paid must have complied with all his or her obligations under the contract. If A promised to pay B's mortgage in exchange for B paying A money now, then if B failed to make the payment when he or she should have, that failure or breach would absolve A (or A's estate) of their own obligation(s). You can't enforce a contract unless you are in compliance with it.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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