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Ray
Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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I 't know if "legally" you can answer my question. My sister

Customer Question

I don't know if "legally" you can answer my question.
My sister died on December 30th, 2014 in Omaha, Nebraska. She did not have a will so I have stayed out of her affairs, pretty much. She left me 25% ($15,000) of her pension and a friend the remaining $45,000. One of her bank accounts has hired an attorney to get the credit card debt of $4,800. I have been told that since we were named as the beneficiaries of the pension and it did not go to her estate or go through probate that they can not touch it.
However, the attorney says that Nebraska has a law that permits creditors to go after this money. They are using Neb. Rev. Stat. 30-2743 ( a & b), and Neb. Rev. Stat. (symbol that looks like an s on top of an s 30-24, 118. Of course I can't understand the terminology but I suspect the attorney is lying about this, I mean bluffing. Anyway...that's the question. Can you answer this. I have used Just Answer for several others questions about this mess. Dan Barthel
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

Hi and welcome to JA Dan. I am Ray and will be the expert helping you tonight.

I agree with you.Referencing these statutes involve probate and this pension here passed directly to you as a named beneficiary.

I would not debate it with them but rather see if they just go away.They may send a demand letter but these statutes do not appear to support such a claim for payment.You are within your rights to deny payment.

They would have to pursue opening probate here and some other assets, it does not appear they can get at the pension, again it passed outside probate as you state.

If sued here you would have right to contest any claim to the pension.I think you are going to find that if they do not bluff you into paying they drop the matter.There appears to be no legal basis at all here from what they cite as support.

Here are the statutes..

Again t his references distributees from an estate not pension..

0-24,118. Liability of distributees to claimants.

After assets of an estate have been distributed and subject to section 30-24,120, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.

30-2743. Transfer; when not effective.

(a) If other assets of the estate are insufficient, a transfer resulting from a right of survivorship, POD designation or TOD registration under sections 30-2734 to 30-2745 is not effective against the estate of a deceased owner to the extent needed to pay claims against the estate, statutory allowances to the surviving spouse and children, taxes, and expenses of administration.

(b) A surviving owner or beneficiary who receives registered or reregistered securities or securities accounts or proceeds thereof after the death of a party is liable to account to the personal representative of the decedent for a proportionate share of the amount received to which the decedent, immediately before death, was beneficially entitled, to the extent necessary to discharge the amounts described in subsection (a) of this section remaining unpaid after application of the decedent's estate. A proceeding to assert the liability for claims against the estate and statutory allowances may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent. The proceeding must be commenced within one year after the death of the decedent.

(c) A surviving owner or beneficiary against whom a proceeding to account is brought may join as a party to the proceeding a surviving owner or beneficiary under sections 30-2734 to 30-2745 of any other security or securities account of the decedent or proceeds thereof or a surviving party or beneficiary of any account under sections 30-2716 to 30-2733.

(d) Sums recovered by the personal representative must be administered as a part of the decedent's estate. This section does not affect the protection from claims of the personal representative or estate of a deceased owner provided in section 30-2741 for an issuer or registering entity that makes payment in accordance with the terms of the security registration.

They would have to sue under this section and open probate as well and be appointed personal representative and get court to agree in order to prevail.Not sure they would do this here.I would sit still and see if they go away.

Expert:  Ray replied 1 year ago.

Also the statute of limitations comes into play if it has been more than 5 years since missed payments you can defend with this as well..

http://credit.about.com/od/statuteoflimitations/g/nesol.htm

I appreciate the chance to help you tonight.Please let me know if you have more follow up.Thanks again.

Customer: replied 1 year ago.
The attorney said he is the attorney for First Nebraska Educators credit union. He is also the attorney for Lindsay Huffman who is a representative of the credit union. She has been appointed as the personal representative of my sister's estate.They think Rachel had a 401K account and an I R A account. She had a 403B acct and nothing more. The attorney says that I should pay creditors claims out of the assets of the estate. The pension never was in the estate so I think is rather new at this game.
Expert:  Ray replied 1 year ago.

I agree with you that they are fishing.I do not think they can prevail here and it s really isn't cost effective for them to open probate.They are trying to coerce you into paying here.

Take your chances that they are just trying to harass you a bit.I would stand pat here see if they go away.Tell them there was no probate and they have no right to harass you any further.

Thanks for the followup and good luck.

Expert:  Ray replied 1 year ago.

If you can leave a positive rating when we are done it is always sincerely appreciated.

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