Estate Law Questions? Ask an Estate Lawyer.
Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I'm sorry to hear of your recent loss. When someone passes away, their probate estate becomes subject to any valid creditor claims. The probate estate is typically comprised of assets that do not pass by operation of law (i.e. it does not include assets that pass outside of probate. Examples of this would be property held in joint tenancy with right of survivorship; live insurance proceeds naming a beneficiary, etc). Probate assets include anything that is addressed in the will (ie life insurance proceeds payable to the estate versus an individual beneficiary). The purpose of probate is to settle the decedent's legal and financial affairs, and to pay off valid creditor claims. If the process is handled correctly, the process serves to bar any creditors that do not timely submit the claim. If the estate is insolvent, then the creditor is out of luck, unless a living person co-signed for the loan, in which case the creditor could attempt to collect based on the co-signor's liability.
From what I'm reading... since the house was in both of my parents' names the house has gone to mom and therefore no longer attachable by dad's creditors?
If it was titled as joint tenant with right of survivorship that would be correct. As then the property passes outside of probate and is not available to the creditors.
So hypothetically if this man attempts to take my mother to court he could only sue dad's estate and assets... which basically don't exist because the only asset worth anything was the house?
Or rather sue his estate and attach his assets.
It sounds like an estate was not opened- which is often the case when the first spouse dies and the surviving spouse held everything of value under the JT with right of survivorship - since probate is not required to transfer the property.
(The loan itself was a personal loan done without anyone legal present:PROMISSORY NOTE$10,000 June 1, 1980I, [my father], in consideration of a loan of money, receipt of which is hereby acknowledged, promise to pay [the creditor], upon demand the sum of $10,000, with interest at the rate of 10% per annum.
I see (sorry, I was typing when you put up the response)
So if your mom re-affirmed it or accepted liability based on subsequent documents, she could be exposed to liability. Otherwise since there are no assets in the estate, the estate is considered insolvent.
Chat sometimes ends up with cross posting but it is convenient for it's real time exchange.
As far as I know she has never taken on liability other than the fact that she happened to be married to my dad and the creditor happened to know and talk to both of them. She has never signed anything. At most this man has harassed her on the side to try to get money out of us, but she has never done anything otherwise.
So based on this information, if he tried to take her to court would the case likely be thrown out (assuming I have provided everything correctly here)
OK, that is good. Since Ohio is not a community property state, the marriage alone would not create liability.
GOOD. She's suffered enough for my dad's poor decision making.
just in case that last line got swallowed up: based on this information, if he tried to take her to court would the case likely be thrown out (assuming I have provided everything correctly here)?
Thanks for retyping that- I missed that. Yes, because a plaintiff needs to sue the proper defendant. There are some states that have old laws stating that for example, the children are responsible for debts of the parents (particularly medical debts) but these have not been enforced in generations.
I see. Thank you so much, this is a great relief. This man was harassing and bullying my mother today while I was at work about this and as expected, she doesn't owe him a DIME.
You are welcome. You may need to hire an attorney to prepare a cease and desist letter, so that he does not continue to contact your mother.
I have been considering that already. We (or I) will be contacting him and laying this out clearly for him. Hopefully that will be enough. But thank you for that suggestion, I was actually thinking of a restraining order, but that is probably more than is necessary. Or are they the same thing...?
The restraining order will be a step above having a C&D letter. Generally, if the person has not annoying as opposed to harassing, a C&D letter suffices as it puts the individual on notice. If, however, your mother is concerned for her safety, by all means a restraining order and a call to the local police to report the incident.
Ok. C&D makes more sense, I don't think he means any physical harm. A part of me feels bad because dad did owe him that money and he wasn't able to pay it, but that doesn't make it ok to harass my mother like this. (It would be different if we actually had enough from the death benefit to pay things out but unfortuneately we barely have enough left over to feel secure that my mom will be ok in retirement)
I understand. I'm glad to hear you think the C&D will work. Here's a link to the state bar's referral page so you can find an attorney in good standing. A C&D should cost between $150-250; https://www.ohiobar.org/Pages/Home.aspx?lawyerfind.net
Thank you so much for your help.
I think that covers everything that I needed to know, I'm feeling much more calm and in control of the situation now.
You are very welcome. Best wishes to your family during this time.
Thank you. Will a transcript of this be emailed to me?
I believe that after the chat is closed there is a print/save button. If not, you can always copy and paste it into a word document, or link it from the emails the site sends you periodically.
Ok, perfect. I'll go ahead and end the session then. Thank you again for this information, it's helped tremendously.
Great. Glad to have helped. Take care! (if you have any problems accessing this, you can contact customer service, as they are great with helping customers with the technical aspect of things).