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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 38910
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I filed on 10/22/14 and my mother died on 2/18/15 So I have

Customer Question

I filed for bankruptcy on 10/22/14 and my mother died on 2/18/15 So I have to declare my inheritance. I don't know how much I am getting. Whatever she had will be divided among us children and there are 11 (eleven) of us It should be anywhere between $10,000 and $20,000. Do I need an attorney to help me out with this. Also is they any way to negoitiate the amount or does the bankruptcy court just take everything. Most of it is in a trust except the small house in Florida which is worth about $100,000.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 2 years ago.

The answer to your question is actually quite uncertain.

1. If you were to do nothing, then the bankruptcy trustee is entitled to receive all of your interest in your mother's estate, unless exempt (e.g., were you to receive a property exempt under the Texas homestead laws, then that property would be unavailable to the trustee. But, for cash, there is no such exemption, so the trustee is entitled to the money).

2. There is case law that holds that a beneficiary who "disclaims" their inheritance, before filing bankruptcy, cannot be held to have violated the bankruptcy laws requiring that the inheritance must be turned over to the trustee.

3. However, there is no case law discussing whether or not a beneficiary can disclaim their interest in an inheritance after filing bankruptcy. See Laughlin v. Nouveau Body and Tan, L.L.C. (In re Laughlin), 602 F.3d 417, 426, fn 10 (5th Cir. 2010) ("It has been recognized by several courts and commentators that post-petition disclaimers of inheritance are not valid under 11 U.S.C. § 541(a)(5). See, e.g., Parker, supra note 7 at 38 ('[T]he language of [§ 541(a)(5)] evidences congressional intent to secure for the trustee the power to accept the devise on behalf of the creditors and to preclude the debtor from exercising the power to disclaim.' (collecting cases)). We do not confront this issue today given that [the debtor] renounced his interest pre-petition."

4. So, the issue is actually "up in the air." Despite some other courts outside of Texas having decided that a post petition disclaimer of property is invalid, the U.S. 5th Circuit Court of Appeals has not made that determination, and until the court does, no one really knows if a disclaimer would work to avoid a seizure by the bankruptcy trustee.

5. You may be asking yourself, "What's a disclaimer?" A disclaimer is a written statement, filed with the court and delivered to the executor or personal representative of the decedent's estate, wherein the beneficiary renounces their right to any benefit under the decedent's estate. If you were to disclaim the inheritance, then arguably, you wouldn't have to notify the bankruptcy trustee, and the money would go to the other beneficiaries. And, of course, if some or all of them were to give you that money as a gift, after your bankruptcy is closed, then that would be their choice, and your good luck.

I can't tell you what to do -- but, the law sometimes presents interesting choices -- and this may be one of those times.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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