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WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 17252
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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Mother died in June 2013 while living in Indiana. She had

Customer Question

Mother died in June 2013 while living in Indiana. She had simple will that all proceeds get divided equally among 7 children. Two children live in Illinois, one of which is currently in the third year of paying monthly funds to a bankruptcy trustee. Those monthly payments are current and should be ending in Feb. or Mar. 2013. The brother contacted his attorney about whether the timing of the inheritance money would allow them to keep it, if the disbursement were made after the 3 year trustee payments were completed. We did not expect that he run to the trustee and let her respond to the question. The trustee says that all his share of inheritance money needs to be turned over to the court. We are talking about less than $5000, but the money is really needed by my brother just to stay afloat. Is there a legal work around so he could keep the money?
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 4 years ago.

WALLSTREETESQ :

This is a common issue,

WALLSTREETESQ :

In a chapter 13, he can do the following:

WALLSTREETESQ :

1. Close his case, and keep the $5000

WALLSTREETESQ :

and refile later, and start again

WALLSTREETESQ :

2. Keep the inheritance and pay it back to the creditors through the rest of the plan,

WALLSTREETESQ :

so if he would receive $5000,

WALLSTREETESQ :

he can arrange to have the $5000 paid over the remaining plan,

WALLSTREETESQ :

so if he has 10 months left he would pay $500 extra per month

WALLSTREETESQ :

Another option may be to delay his distribution,

WALLSTREETESQ :

till after the completion,

Customer :

We were wanting to delay it until after the completion of the plan. When we asked his attorney if that could work, he forwarded the question to the trustee. She is now aware of the inheritance and says it has to be turned over to the court. Can they force us to make a distribution now?

WALLSTREETESQ :

It should not have been discussed with the trustee, but it could be done,

WALLSTREETESQ :

through the probate, if the trustee wants he could review the probate case and see what is left over.

WALLSTREETESQ :

Your probate attorney may be able to delay the payments.

Customer :

Exactly my thoughts. Am so frustrated with the attorney for having done that. The money is all in a checking account now and we were not going through probate.

Customer :

Just going by the written will.

WALLSTREETESQ :

that may be better,

WALLSTREETESQ :

I would send it to probate court, that will take several months,

WALLSTREETESQ :

he should advise the trustee that, he does not know how much he will get,

WALLSTREETESQ :

as the WILL was never probated,

WALLSTREETESQ :

during probate, it may be possible

WALLSTREETESQ :

to delay it enough that the trustee leaves it alone

Customer :

Is there much cost involved with probate?

WALLSTREETESQ :

if it is a small estate it should be less than a few hundred dollars,

WALLSTREETESQ :

without an attorney, you should check with the local probate court or surrogates court,

WALLSTREETESQ :

That is a valid reason to delay the matter, as probate could take years as well,

WALLSTREETESQ :

he can advise the trustee he was not aware that the WILL has to go to probate, and that will take some time, and he does not know for sure the amount of the inheritance if any

Customer :

Yes, it would be considered a small estate.

Customer :

So what is the difference between probate and surrogates court? Is one preferable in this situation?

WALLSTREETESQ :

no they are the same,

WALLSTREETESQ :

Typically the surrogates court, is the place you go to file a Probate of a Will

Customer :

Ok, if we opt not to use probate, does the executor of the estate have the right to simply determine when the distribution is made?

WALLSTREETESQ :

The Will to be valid has to be Probated in court, if it is not another heir or sibling can sue the executor,

Customer :

I see.

WALLSTREETESQ :

No bank or court will accept the will without probate,

Customer :

Ok I think I am getting the picture. Thank you for your help.

WALLSTREETESQ :

Good luck, and if you have any further questions please do not hesitate to aks.

WALLSTREETESQ :

ask

WALLSTREETESQ :

If satisfied with our service please provide us with positive feedback.

Customer :

Well thanks for that option. May have some more questions as things develop.

WALLSTREETESQ :

Ok, good luck,

Customer :

Thanks again!

WALLSTREETESQ :

and make sure he advises his lawyer that no inheritance has been determined yet

Customer :

You are speaking of my brother advising his lawyer?

WALLSTREETESQ :

yes,

Customer :

the guy handling their bankruptcy?

WALLSTREETESQ :

Yes,

WALLSTREETESQ :

he should advise the trustee that probate has not started and no inheritance has been determined,

Customer :

Ok, good. Will I be able to reference this chat later if I want to or does it go away when I end the chat?

WALLSTREETESQ :

Once you provide us with feedback, the chat is saved and emailed to you

Customer :

Ok. thank you.

WALLSTREETESQ :

Good luck

WALLSTREETESQ :

If satisfied with our service please provide us with positive feedback.

WALLSTREETESQ :

Thank you