Q: Our mother died recently and some of her estate is in probate and they asked us if any of us have declared bankruptcy.
Filed for Bankruptcy in Il: Reorganization (#1203036) Jan. 30, 2012
Filed for Bankruptcy in Ny: Liquidation (#0368257) Dec. 8, 2003
How do we find out if there are still creditors looking for payment? We are just interested, I think he should be held accountable for his debt
A: I don’t understand what you are asking. First off, I don’t understand how “part” of an estate is in probate. All probate assets should be identified in the Inventory. If some of your inheritance is outside of probate in life insurance, funds naming a beneficiary, or joint titles with rights of survivorship, that’s not part of the probate estate, though it may be part of the taxable estate.
If the bankruptcy referenced is the decedent’s, then whatever debts have been discharged in 2003 are gone. You need to consult with the bankruptcy lawyer if your mother was paying off a chapter 11 or 13 when she died.
If you are referring to the bankruptcy of the prospective personal representative, bankruptcy is not necessarily a disqualification from serving, especially a long closed bankruptcy from 2003 or 2012, but the heirs and the court have a legitimate concern about appointing a fiduciary who has needed to resort to bankruptcy. It may be wise to petition for appointment of a Virginia lawyer as co-administrator or co-executor. The lawyer is only permitted to charge for his or her time regardless of whether they are merely the lawyer or also serving as the personal representative.
A: It's a bit complicated: the relevant issues are that if someone dies and you are to inherit from them, your rights 'vest' (are established) at the time of death, not when the estate is distributed. If you file bankruptcy, normally only the assets you have as of the date of filing are considered for distribution to the creditors but inheritance is an exception:
See 11 USC 541(a)(5) which says, in part: "Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date--
(A) by bequest, devise, or inheritance; . . . "
So if you file bankruptcy and five months later someone dies leaving you an inheritance, the bankruptcy court could take it for your creditors.
That's why the estate is asking that question. Your 2003 and 2012 bankruptcies shouldn't affect your right to your share of the estate.
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.