A mess...a will, divorced parents, declined inheritance and my BK. need advice

[tobee43]

The OP said that there was a will, and that there appears to be a distribution, so that's not intestate. I was referring to "what" is the date of entitlement, which was my original post.

If the mother already disclaimed the inheritance and we are within the 180 days, does this become property of the Estate immediately, or is it after probate declares so.

I do agree with Des that this is all going to be based on the date. I have just been saying that if the person doesn't care about the money, and it's a relatively small amount, then exempt what you can, and just let it happen. But Des is much more qualified to answer most of the questions on this. I was involved in a probate case with similar issues, although it was an intestate estate with a living estate and the successor died as well. Just a mess.

yes, i know jb, i just was throwing stones because i couldn't figure it out as to why the ex was named. that's not really usual, although i have certainly seen it. i agree with des as well, it's all going to depend on the actual date. i still handle a rather large trust for a firm in calif, and it's much easier when it's all spelled out paragraph after paragraph, it makes everyone's life much easier. i just know i'm doing everything i can not to make it a mess for the family or their future. which means amending almost on a monthly basis etc. and in this case it's just a pour over will, so the will means nothing.

personally, for me, no amount is too small LOL!

[justbroke]

i'm not certain about that? only because why would the call be made to OP yesterday, it could have been in probate and this was the probates courts resolve? so OP, this is such speculation on my part, i'm sorry if i'm reading far more into your situation

The OP said that there was a will, and that there appears to be a distribution, so that's not intestate. I was referring to "what" is the date of entitlement, which was my original post.

If the mother already disclaimed the inheritance and we are within the 180 days, does this become property of the Estate immediately, or is it after probate declares so.

I do agree with Des that this is all going to be based on the date. I have just been saying that if the person doesn't care about the money, and it's a relatively small amount, then exempt what you can, and just let it happen. But Des is much more qualified to answer most of the questions on this. I was involved in a probate case with similar issues, although it was an intestate estate with a living estate and the successor died as well. Just a mess.

[tobee43]

So, what is the controlling document or law that is giving her a 50% share?

although directed at des, this really is my question as well???

i was also wondering if the father died intestate, as i'm wondering why an ex would be entitled to 50%...and maybe the state is taking the other 50. just speculation which; sorry Icy, you would know and understand the details much better than i. i know some people leave their property to ex's as well, just not a usual happening in most cases i have seen. (again, not suggesting it's unheard of).

[HHM]

This is not as simple as one would think. As we sit here today, Icy IS NOT entitled to anything as Icy is not named in the will. Icy may (and I stress the word "may" as this turns on State law) be entitled to an inheritance if and when the named beneficiary (mom) renounces her right to the distribution. If my interpretation is correct and the right to the distribution is controlled by mom, then if mom holds off renouncing her inheritance for 181 days after Icy filed then it would be outside of the scope of "property of the estate".

Icy needs to discuss the timing issues and whether or not there is an "inheritance" for the purpose of 11 USC 541(a)(5) not only with bk counsel but also with a good probate attny especially if mom holds off renouncing her right to take the distribution.

Des.

That is the "argument" that this debtor will need to make, but by no means do I think the trustee would just roll over on that issue. Unless there is some specific case law on an issue like this, I think the point is arguable as to what constitutes the triggering event. It is pretty hard to get around and argue that the "death" is not the "but for" cause of any right the debtor may have.

My first question, is mom in the will? I suppose I will take the OP's statement of their state law at face value, but generally, once divorced, there is no right to intestate inheritance to the ex-spouse and unless the Will was ratified by the deceased (that is, re-executed) after the divorce to still include the Ex, the Ex-spouse is written out of the will. I suppose the Divorce Decree may contain something (but that would be odd). So, what is the controlling document or law that is giving her a 50% share?

[tobee43]

At least this is not intestate and would have probate issues all over it; been there, done that. I agree that it is when the debtor became entitled to the inheritance, but that is the core question.

i'm not certain about that? only because why would the call be made to OP yesterday, it could have been in probate and this was the probates courts resolve? so OP, this is such speculation on my part, i'm sorry if i'm reading far more into your situation

[spidge]

So she just became aware that she may be entitled to an inheritance after the 180 day mark? Did I read that wrong? Seems she does not have to tell the trustee diddly.

[justbroke]

At least this is not intestate and would have probate issues all over it; been there, done that. I agree that it is when the debtor became entitled to the inheritance, but that is the core question.

[tobee43]

Tb,

You and I are thinking along similar lines, however, depending upon State law, the moment mom renounces, Icy steps into her shoes. If, on that moment, the inheritance is property of the estate, Icy has no authority to decline the distribution as Icy does not control the asset (assuming we are within the 180 days).

Des.

got it, so it really depend on that's state law. i got it. however, if there are other siblings or other family, why, if that would be within the limits of that's state law, would the OP have no rights of refusal of the estate assets?

[daveinIL]

Tb,

You and I are thinking along similar lines, however, depending upon State law, the moment mom renounces, Icy steps into her shoes. If, on that moment, the inheritance is property of the estate, Icy has no authority to decline the distribution as Icy does not control the asset (assuming we are within the 180 days).

Des.

I would think that once the mom renounces, it does not immediately revert to Icy. It would then go into some sort of "open" state where the State would have to do their due diligence before there would be any kind of distribution. My experience with "undefined" estates would lead me to believe this would be on the order of months for a trivial estate and years for an extensive one.

[tobee43]

i was also wondering if the father died in testate, as i'm wondering why an ex would be entitled to 50%...and maybe the state is taking the other 50. just speculation which; sorry Icy, you would know and understand the details much better than i. i know some people leave their property to ex's as well, just not a usual happening in most cases i have seen. (again, not suggesting it's unheard of).

[despritfreya]

if. . . your mother has the right to decline, you do as well.

Tb,

You and I are thinking along similar lines, however, depending upon State law, the moment mom renounces, Icy steps into her shoes. If, on that moment, the inheritance is property of the estate, Icy has no authority to decline the distribution as Icy does not control the asset (assuming we are within the 180 days).

Des.

[tobee43]

This is not as simple as one would think. As we sit here today, Icy IS NOT entitled to anything as Icy is not named in the will. Icy may (and I stress the word "may" as this turns on State law) be entitled to an inheritance if and when the named beneficiary (mom) renounces her right to the distribution. If my interpretation is correct and the right to the distribution is controlled by mom, then if mom holds off renouncing her inheritance for 181 days after Icy filed then it would be outside of the scope of "property of the estate".

Icy needs to discuss the timing issues and whether or not there is an "inheritance" for the purpose of 11 USC 541(a)(5) not only with bk counsel but also with a good probate attny especially if mom holds off renouncing her right to take the distribution.

Des.

yes, this is the way i see it as well. estates can be a sticky situation! i think there is a "legal" way out here thanks des!

[despritfreya]

This is not as simple as one would think. As we sit here today, Icy IS NOT entitled to anything as Icy is not named in the will. Icy may (and I stress the word "may" as this turns on State law) be entitled to an inheritance if and when the named beneficiary (mom) renounces her right to the distribution. If my interpretation is correct and the right to the distribution is controlled by mom, then if mom holds off renouncing her inheritance for 181 days after Icy filed then it would be outside of the scope of "property of the estate".

Icy needs to discuss the timing issues and whether or not there is an "inheritance" for the purpose of 11 USC 541(a)(5) not only with bk counsel but also with a good probate attny especially if mom holds off renouncing her right to take the distribution.

Des.

[tobee43]

I used state exemption, and I believe there is still some wiggle room in that area. I had already let my house go, owned a car worth $4k or so, and have minimal furniture. My second car is upside down by about $1,500, but I reaffirmed out of necessity, as my kids share a car and are commuting to college daily.

If there is a way for me to disclaim, as you pointed out, I wonder if my share would then go to my kids? From what I have read, the day you reject the inheritance, it is treated as if you died before the person who had the will.

if you were not named in the will and your mother has the right to decline, you do as well. i would take this question to the estate atty first and NOT the bk . so, since you were never named this was not within the 180 days since you are not listed there. it's almost like you are getting this as a result of default. that's a bit different than being actually entitled.

see if they can by pass you completely and go directly to your children. it should be able to happen since you were not listed in the actual will. also is this a will or a trust??? because if it's a trust there are many ways around this, but if it's a will it's a different story.

if there is NO estate atty, see which firm drew up the will and i would call them. best of luck to you and so sorry for your loss!

[Icyshades]

I used state exemption, and I believe there is still some wiggle room in that area. I had already let my house go, owned a car worth $4k or so, and have minimal furniture. My second car is upside down by about $1,500, but I reaffirmed out of necessity, as my kids share a car and are commuting to college daily.

If there is a way for me to disclaim, as you pointed out, I wonder if my share would then go to my kids? From what I have read, the day you reject the inheritance, it is treated as if you died before the person who had the will.