Lawyers, Answer Questions  & Get Points Log In
Questions Answered by W. J. Winterstein Jr.
1 Answer | Asked in Probate for Pennsylvania on
Q: Is it my responsibility or my brother's kids to give the probate attorney a death certificate for him?

In early October, my mom passed away suddenly and unexpectedly. She didn't have a will. She lived in Pennsylvania, and I'm in Texas, so I have to do all this from afar.

The probate attorney told me I would need death certificates for her. A few weeks ago, he told me he would need... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 26, 2023

Determination of legal heirs where there is no Will is provided in the PA statutes.

Your PA probate attorney has this answer at his fingertips.

While it does seem that the brother's children would anxious to prove their entitlement to shares of his estate, it is best to give...
View More

3 Answers | Asked in Bankruptcy, Divorce and Family Law for Maryland on
Q: Can a postnuptial agreement or Divorce decree free a spouse from creditors collecting on the other spouses debt?

My wife is worried that if we divorce and I eventually went bankrupt that she will be legally responsible for my finances. She thinks that there's a 5 year look back so if I went bankrupt within 5 years of our divorce finalization that creditors can legally claim her as liable.

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 21, 2023

If you file a Chapter 13 petition in the future, it includes a co-debtor automatic stay for claims "dealt with by the Plan".

Filing a bankruptcy does not create a liability in a non-filing spouse. If she is currently liable as a joint obligor, then she remains liable for that...
View More

View More Answers

3 Answers | Asked in Bankruptcy for Arizona on
Q: Does bankrtupcy annul unpaid Decree ordered, joint-child expenses (medical & extracurricular) that are in arrears?

I filed bankrtupcy and have completed my hearing. My ex spouse has several years of unpaid *Decree Ordered* joint-child expenses. Specifically outlined as "Medical and extracurricular", as agreed in writing. Now he claims he no longer owes those arrears because of the bankrtupcy. I... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 20, 2023

The long-standing key issue about domestic relations payments in the bankruptcy context is whether the (divorce) required payments are in the nature of property division (which are dischargeable) or for spousal or child support (not dischargeable).

In many states, the divorce section of the...
View More

View More Answers

2 Answers | Asked in Bankruptcy for Oklahoma on
Q: can a couple file for bankruptcy separately
W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 20, 2023

Yes, but there are wrinkles.

E.g. When computing income in bankruptcy, which can be jurisdictional and determine eligibility for which chapter of relief is appropriate, a spouse's/'roommate's share of living expenses will probably be calculated to determine amounts which...
View More

View More Answers

1 Answer | Asked in Collections for Pennsylvania on
Q: Can social security be garnished for credit card debt in PA?

My 72 yr old Aunt has advanced dementia, is being cared for by her sister (my Mom) and has thousands in credit card debt. My Mom is paying the debt but needs extra help to care for my aunt and doesn't have the money to pay for it. Can she stop paying the cc debt (from my Aunt's social... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 18, 2023

While Social Security payments are exempt from judgment creditors in PA (and almost all other places), a creditor with a judgment can require the debtor to appear for deposition in aid of execution, or force responses to other forms of discovery in aid of execution.

To fend that off, most...
View More

1 Answer | Asked in Estate Planning and Probate for Pennsylvania on
Q: Can you avoid getting a probate bond without a will?

My mother passed away recently, and she didn't have a will. I contacted an attorney to take care of her estate, and I'm getting the death certificates he needs.

He told me that since she didn't have a will, I'd have to get a bond. The problem is I don't have the... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 17, 2023

Probate court rules can vary from county to county, but in your situation, a "family agreement", which usually deals with matters of both distribution and procedures, would be a good place to provide that you are to be the personal representative and that you are to serve without bond... View More

1 Answer | Asked in Estate Planning, Probate and Tax Law for Pennsylvania on
Q: In PA, Can non-probate inheritances be filed on a separate inheritance tax return from the return filed by the estate?

e.g., An estate is established, no will exists. Probate (and some non-probate) items will be included on the Inheritance Tax Return filed for the estate. There also exist some non-probate items with beneficiaries named (e.g. IRA, annuities). Can the beneficiary file their own Inheritance tax... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 16, 2023

In PA, the "estate tax" is levied upon the fair market value of the benefit distributed. Usually, the Will provides that the Estate will pay all debts, and that includes the tax on bequests. Once paid, the distributed benefit gets the "stepped up basis" to its fair market... View More

4 Answers | Asked in Bankruptcy for Michigan on
Q: If a person declares bankruptcy will they lose their house?

Thousands secretly charged on credit card by spouse.

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 9, 2023

Much of your answer is fact-dependent.

E.g., is your mortgage debt current? Who controls the family finances/checkbook? How much credit card debt has been accrued? Is there equity value in the residence above the mortgage balance?

A Chapter 7 bankruptcy is a so-called...
View More

View More Answers

3 Answers | Asked in Bankruptcy for Ohio on
Q: I moved from another state and filed bankruptcy 1 1/2 yrs later. Attorney filed for Oh not the other state.

Am I responsible for their mistakes. They are now trying to take exempted property, or tell me I have to pay $20,000 to the trustees.

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 8, 2023

Every voluntary bankruptcy case is commenced by the filing of a bankruptcy petition, signed by the debtor, under penalty of perjury. The debtor's signature constitutes the sworn testimony of the debtor that whatever the Petition says is true and correct, and that sworn oath applies to the... View More

View More Answers

2 Answers | Asked in Bankruptcy for Georgia on
Q: I filed chpt 13 bankrupcy to avoid foreclosure sell on house Tues. So had time to sell it. Can I still cancel bankrupcy

If I can still sell house now and stop bankrupcy for actually going thru in ga. How much time do I have bf I must cancel and avoid it from going thru?

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 5, 2023

You don't say so, but it sounds as if you filed pro se, without counsel, and that's always dicey for a non-lawyer.

If you filed at least the minimum required documents (the Petition, a Certificate that you completed the approved counseling course prior to filing, and a full list...
View More

View More Answers

3 Answers | Asked in Bankruptcy for Virginia on
Q: What happens to an active garnishment once bankruptcy is filed?

I filed for bankruptcy some years ago and I also had garnishment. Once the bankruptcy is filed, does the garnishment stop? And am I still liable for payments even if the bankruptcy is approved?

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 2, 2023

At the moment you file for bankruptcy relief, regardless of Chapter, an automatic stay against any action against you or your (the Estate's) property is estopped, and usually courts say "of no legal effect".

But the key to what happens thereafter hinges upon whether the...
View More

View More Answers

4 Answers | Asked in Contracts and Bankruptcy for California on
Q: We bought a home 2 years ago that had 9 years left on a solar lease with American Solar Direct. Can we get out?

Our panels generate enough power to run our refrigerator and our electric bills are through the roof. ASD went bankrupt years ago. Can I get out of this lease and have a new company take over?

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 1, 2023

A quick search tells me that ASD went out of business and filed a Ch. 7 (liquidation) bankruptcy.

A debtor in bankruptcy, and/or his creditors and contractors, has a limited (two months) to choose whether to assume any executory contract or to reject it. You are far beyond that deadline,...
View More

View More Answers

4 Answers | Asked in Bankruptcy, Business Law and Government Contracts for Maryland on
Q: Filing Chpt.7 BR. Don't know how to answer "are debts primarily consumer or business debts" as is 50/50 with SBA EIDL.

Debt is unsecured debt, HOWEVER, it is equal debt from credit cards and an SBA EIDL loan that is sub-$25k. So basically, I have $25k in CC debt and $25k in SBA EIDL which is for a SOLE-PROP biz.

1) I do not know how to answer the question as to whether I haver primarily consumer debt or... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Nov 1, 2023

The key to answering all of the Official Form bankruptcy questions is full disclosure. In our opinion, you can answer either way, but the rest of the questions in your completed forms will answer this question adequately, if full answers are given.

With your intent to file for relief,...
View More

View More Answers

2 Answers | Asked in Bankruptcy and Landlord - Tenant for Maryland on
Q: Filing Chapter 7 in MD this week. I also have an eviction (rental) hearing next Monday. Question on letting court know

Once filed, how do I let the District Court know that I filed for bankruptcy so that the hearing does not proceed on Monday, Nov. 6th? (As of course, once you file for Chapter 7 bankruptcy, there is an automatic stay/injunction.)

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 31, 2023

Assuming you have the Clerk's/Court's contact info from your Notice of the eviction case, the quick way is to telephone the Court/Courtroom Deputy, during working hours, and provide the name of your bankruptcy court, with the Bankruptcy Case No., and date of filing. A more reliable way... View More

View More Answers

3 Answers | Asked in Bankruptcy for Tennessee on
Q: I filed chapter 13 bankruptcy and I included my auto loan in the plan but capital one still haven’t filed a proof of

Claim and it has reached the deadline can they still file a late claim to continue to make payments threw my bankruptcy or what will happen

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 30, 2023

A debtor has the option of filing a Proof of Claim for a debtor, and it sounds as if you should do that, so that plan payments flow to the secured creditor. The Chapter 13 Trustees pay on filed Proofs of Claim.

Of course, you should confer with your bankruptcy attorney first before taking...
View More

View More Answers

1 Answer | Asked in Estate Planning and Probate for Pennsylvania on
Q: How do we start the process of removing the executor?

My sister is executor, my mom passed May 2020, and had a very simple estate. Still not closed out, and she will not respond to emails from me or the probate attorney. There are deposits in moms name she will not clarify where they are

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 25, 2023

This issue, and your questions, should be addressed to your probate attorney.

In PA, every personal representative, whether executor named in a probated will or and administrator, both appointed, and entrusted, by the court, is required to file an Inventory of all estate assets. That...
View More

4 Answers | Asked in Bankruptcy and Real Estate Law for Florida on
Q: A home mortgage was discharged under a previous bankruptcy. Is a mortgage still discharged after a refinance?

The home is on my name alone. I refinanced later. The new note has my wife and me as borrower, and owners!? can she file bankruptcy without loosing home in Florida?

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 25, 2023

In a Ch. 7 bankruptcy, no lien is discharged (thanks to a US Supreme Court opinion in the Dewsnup case, despite Bankruptcy Code language to the contrary).

What is discharged, however, is an unsecured deficiency amount in the Mortgage indebtedness.

Some liens can be converted to...
View More

View More Answers

2 Answers | Asked in Estate Planning and Real Estate Law for Pennsylvania on
Q: Can a parent leave a house to their adult children if there's outstanding debt?

My father doesn't think he can leave my sister and I the house because he says the bank still owns it technically. He doesn't know where the deed is, but the courthouse should have it. I don't know what to do. He's in a rehab facility currently, he's 82. He says he said the... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 18, 2023

Yes, of course, assuming the property is located in PA. The owner of the property (him) owns the property, and the bank with a mortgage against the property has a mortgage lien against the property. So long as payments are made in accordance with the mortgage Note, the bank had no right to... View More

View More Answers

1 Answer | Asked in Contracts and Collections for Pennsylvania on
Q: I just got a bill from a plumbing company. Work was done by the guy he bought out and he billed me right before he sold.

The original plumber sent me an unitemized bill one year after the work. The verbal quote was less than 1/3 of the bill. I asked for more information. He sold the company. I called the new owner and he said I did not have an outstanding bill and all was good. One year later he bills me for the work... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 17, 2023

"Can he"?

Sure. Anybody with a couple hundred dollars for the court costs can sue anybody else for any reason.

But can the plaintiff win on what gets filed?

There's the rub, lol. From what you say, it sounds like this plumber's claim would fail. BUT,...
View More

2 Answers | Asked in Bankruptcy and Real Estate Law for District of Columbia on
Q: I am owing the person I bought my house from and they want me to sell the house at a reduced rate reducing by every mont

they're afraid that I would not sell the house so they said I have to reduce it by 10k every month until I get an offer or we go back to court. I'm wondering if there is a law or some kinda of stipulation that I won't be so caged in this tight constraint but still give them the... View More

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
answered on Oct 16, 2023

What the other party demands has no force if a court does not order accordingly.

Assuming, though you have not said so, that you are in a Ch. 13 bankruptcy, the more common provision is to provide, in a Plan, a one-year (or shorter) "drop dead date", by which the property will be...
View More

View More Answers

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.