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If I take the money out of my deseased father bank account…

Customer Question
If I take the...

If I take the money out of my deseased father bank account which is no more than 10000 k.

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

Virginia 22312

Lawyer's Assistant: Has anything been filed or reported?

No

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If I try to take the money out of my passed away fathers account would his debt collectors come after me?

Submitted: 5 months ago.Category: Legal
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11/19/2017
Lawyer: Dwayne B., Attorney replied 5 months ago
Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 34,389
Experience: Began practicing law in 1992
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Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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Lawyer: Dwayne B., Attorney replied 5 months ago

Under what authority would you take money out of the account? Are you the executor of the estate, etc?

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Customer reply replied 5 months ago
Hi Dwayne. My father passsed away on the 24th of Oct. He was not making any money towards the last couple years of his life which created a bit of debt before he died. As he was going through his chemo therepy his golf friend created a go fund me account to help him through the next stages of the treatment. I put money into this along with helping raise close to half of the funds raised through family and friends as well. Long story short, he got an infection and we lost him sooner than we thought. So now this money is in his account just sitting there. It’s about 10 thousand dollars. To answer your question, in my research so far I was thinking small estate affidavit without having to become the executor even though I’m next of kin. My aunts his sisters paid for the creamation and funeral and I would like to pay them back for that with this money. What ever is left over I have a 1/2 brother who is only 10 years old that I would like to split what ever is left from money with if possible. The problem is I am afraid of his debts then coming after me. His debts are well over the amount of money in this bank account. Do you have any advise or further questions to help me with this?Thanks!
Customer reply replied 5 months ago
If you want to talk to you do I have to pay 19$ more or 59?
Lawyer: Dwayne B., Attorney replied 5 months ago

As an expert, I don't have any information on what you have already paid or what you owe. If you would like, I can send this to the moderators and let them resolve the mater before we proceed any further.

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Customer reply replied 5 months ago
No. That’s ok. We can just text
Lawyer: Dwayne B., Attorney replied 5 months ago

Oh, I see what you meant now. I don't participate in the telephone program anyway if you got an email about that, those come directly from the website and then when I get a request I indicate I don't take them ,as most experts don;t, and it goes into a general queue for anyone who wants to pick up on it.

As to the actual question, you are correct, creditors can come after anyone who uses a small estate affidavit under these circumstances. One of the qualification for the affidavit is that you have to swear there are no creditors owed and this put you on the hook for the full extent of the debt. If he had roughly $10k, in a bank account that did not have a beneficiary designated plus debts, then you would almost certainly have to open a full, albeit small, probate.

Going through the regular probate will protect you personally from the claims of creditors.

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Lawyer: Dwayne B., Attorney replied 5 months ago

I have to step awa for about 15-20 minutes or so but will be back right after that.

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Customer reply replied 5 months ago
Thanks Dwayne,He did not add a benefitiary to this bank account.Are you suggesting that if I go through regular probate I am clear from his debts to receive this money? Also what about the half brother, will I need to include him in this form?Can you please explain further how this would work? What exactly do I need to do? This is taking place in Fairfax County Virginia. Let me know when you get bk please.Best,
Customer reply replied 5 months ago
El IB
Lawyer: Dwayne B., Attorney replied 5 months ago

I'm back

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Customer reply replied 5 months ago
I’m here
Lawyer: Dwayne B., Attorney replied 5 months ago

Yes, if you go through regular probate (and do things correctly) they have to make a claim against the estate within a certain period of time after notice. If they fail to do so then they can't go after you or anyone else.

You really need a lawyer to help with the probate. Probate law is extremely complex, the laws are antiquated and often make no sense at all, and, as I said above, so long as you do things correctly you are safe. the inverse of that is if you don't do things correctly it can leave you at risk.

Essentially what you do in probate is file an Application for Probate, have you (or someone else) appointed as executor, serve all of the heirs or potential heirs, serve the known creditors, publish notice wherever the court directs (usually in the local newspaper and by posting notice on the courthouse door), do an inventory for the court, gather assets, pay bills/creditors, distribute assets to heirs/beneficiaries, file a closing inventory, and have the court close the estate.

But, just a warning, that sounds easier than it actually is and there are some smaller steps in there, depending on the specific facts. You can order a form set from a website like this one, but probate is more than just filling out a form or forms. you have to be able to identify problems before they arise and handle them before or after. You have to know the Probate Code, the Rules of Civil/Trial Procedure/Practice, and you have to understand how evidence works.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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Customer reply replied 5 months ago
The thing is that the money in the account is way more less than what he currently owes
Lawyer: Dwayne B., Attorney replied 5 months ago

Then the creditors get first crack at it, as the law allows. However, often they forget to file claims, or don't want to mess with filing the claim, the attorney for the estate and the funeral expenses get paid first, etc.

Since the law says there is an order of claim on the assets, you going around that order of claim and taking the money from the bank and giving it to someone else is what makes you liable. There can be other problems that the creditor has, such as not being able to prove they are owed the money, which can knock them out of contention for payment if things are done correctly. The lawyer can help you go over all of those and determine what is covered and what is not. Plus, the court will order the lawyer reimbursed so it really doesn't cost you anything to have them do most of the work and protect you.

Finally, the lawyer can also let the creditors know that if they apply for payment then he is also going to ask that they be forced to pay a portion of his fees. This can also make the creditors wary of filing.

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Lawyer: Dwayne B., Attorney replied 5 months ago

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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Lawyer: Dwayne B., Attorney replied 5 months ago

One other thing, you may want to check the GoFundMe rules. At one time, any monies that were raised could not be taken by the family and used for anything EXCEPT payment of the bills of the deceased. I'm not sure what your agreement says because it varied by state and other factors but if it did say that then it would be a criminal offense to use the money other than to pay creditors or bills of the estate until all of those were paid.

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