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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 100053
Experience:  Fully licensed attorney in Texas in private practice.
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My dad died a year ago. We just received a warrant for debt

Customer Question

My dad died a year ago. We just received a warrant for debt in his name in the amount of 6,000. He only left $400 in a bank account ... my mom was made executor of his estate (which now I realize may have been a mistake). Do I send yet another copy of the death certificate to the creditor and now to the court as well. Im really trying to avoid these folks trying to get my mother into court over this matter. Her own mental health is not well and is worse with all of this going on.
Submitted: 4 months ago.
Category: Estate Law
Expert:  Ely replied 4 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Please tell me:

1) What state is this in?

2) Did you formally file for probate for his estate?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 3 months ago.
VirginiaMom filed as executor of his estate with the city. That's what the forms say I'm not sure if that's the same as probate. The Virginia elder law lawyer I consulted say my mom is not personally responsible for this debt. But can they go after her in court to try to get the money out of his "estate " which is basically nothing.
Expert:  Ely replied 3 months ago.
Thank you. My apologies for the wait as I was offline when you had responded.
A warrant in debt in Virginia when a creditor is suing a person in General District Court. So if she is named as the Defendant, then the creditor is suing her.
Under Virginia Code Section § 55-37 et seq, the surviving spouse is liable for debts incurred for necessities while the spouse was alive. This means - but is not limited to - medical bills, food, rent/mortgage, utilities, etc.
So if they are suing her for such a debt, she may be liable. Regardless, she needs to file an ANSWER right away to avoid a default judgment (let me know if you need an answer form/example), and then enter into negotiations to possibly minimize the debt.
If they are suing her for a debt that is NOT a necessity, then she still wants to file an answer, but also file a Motion for Summary Judgment or Motion to Dismiss asking the Court to dismiss the suit.
If not sure whether the debt is a "necessity," reply and let me know. OR, if the creditor is suing HIM, reply and let me know.
Statute is below:
§ 55-37. Spouse not responsible for other spouse's contracts, etc.; mutual liability for necessaries; responsibility of personal representative.
Except as otherwise provided in this section, a spouse shall not be responsible for the other spouse's contract or tort liability to a third party, whether such liability arose before or after the marriage. The doctrine of necessaries as it existed at common law shall apply equally to both spouses, except where they are permanently living separate and apart, but shall in no event create any liability between such spouses as to each other. No lien arising out of a judgment under this section shall attach to the judgment debtors' principal residence held by them as tenants by the entireties or that was held by them as tenants by the entireties prior to the death of either spouse where the tenancy terminated as a result of the death of either spouse.

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Customer: replied 3 months ago.
He is the only one named on the warrent. It is far a loan he took out and she was not the cosigner. I have informed the creditor numerous times of his death and provided copies of the death certificate
Expert:  Ely replied 3 months ago.
What is the debt for, specifically? What kind of loan? What was the money used for?
Customer: replied 3 months ago.
we don't know ... maybe an auto loan or refinance on an auto but we really don't know. He was constantly purchasing and selling things. We don't have possession of anything belonging to him except clothing and personal items.Now the sheriff has put the same warrant in only his name on our door. Do we send the death certificate directly to the court before the court date? I feel like the lender is now harassing and trying to scare my mother with this warrant as she was not a cosigner for the loan, they have told me on the phone she is not responsible and so did their collection agency, and they have acknowledged receipt of the death certificate. However, they have now filed this warrant in the name of a deceased man with the local court.
Expert:  Ely replied 3 months ago.
Thank you for your reply. This falls back on the doctrine of necessities. Ergo, again:
So if they are suing her for such a debt, she may be liable. Regardless, she needs to file an ANSWER right away to avoid a default judgment (let me know if you need an answer form/example), and then enter into negotiations to possibly minimize the debt.
If they are suing her for a debt that is NOT a necessity, then she still wants to file an answer, but also file a Motion for Summary Judgment or Motion to Dismiss asking the Court to dismiss the suit.
You want to find out what the debt is FOR. That controls as to her liability. Once they find out he is passed, whether or not they can sue/pursue her depends on the above.
Sending the death certificate to the court by itself is not proper. She (or whoever else wants to if not her) has to have formal Letters of Testament/Administration from the Court to stand as his Executor/Administrator, and then file an Answer for his estate. She may indeed not be responsible, but HIS ESTATE still is if he took out the debt.
At this point she may wish to get an attorney because this is going to get very complicated, very fast.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 3 months ago.
The loan was for an auto which we do not have nor do we have any idea what he did with it. My guess is he sold it?? Who knows but we definitely do not have a car. So this debt was definitely not for a necessity and her name is ***** ***** the warrent. Please send the sample documents you mentioned. I know my mom can not handle appearing on court regarding this matter. She has suffered tremendous emotional distress with all of this. Would she be required to appear in court?
Expert:  Ely replied 3 months ago.

She may have to appear in Court - yes. It is recommended that an attorney is hired here.

I meant I can offer a form for her if she is being sued. You are telling me that HE is being sued. If so, it is not as simple as filing an answer, because:

1) She would need to get an appointment as his Executor (this is like a "Power of Attorney" for his estate, but from the Court), and

2) File an answer on his behalf once she does.

This takes more than just one or two forms and means a complicated matter in both probate and litigation. She is going to need an attorney. I doubt that she can do this herself, I am afraid. If finances are tough, I can recommend three resources. First, here is a list of all pro bono work in the state...

http://www.abanet.org/legalservices/probono/directory/virginia.html

…and another list:

http://www.lawhelp.org

Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:

http://www.hg.org/law-schools-virginia.asp

Thanks again for not shooting the messenger, in advance.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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