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Should a 65 year old widower carrying heavy debt whose wife was the breadwinner file for chapter 7 bankruptcy?

Long Beach, CA |

My would-be mother in law passed away 10 days ago. Her husband was highly dependent and is hardly able to feed himself, let alone fend for himself in the real world without her constant care and support. He is certainly unable to deal with his finances or pay off the debt the couple so exuberantly accumulated over the years.

His three children are clamoring to get a grip on his financial situation and they're in over their heads in my opinion. Could this debt land on his kids while he is still alive or if he passed away? Given that his primary source of income will be social security and he really shouldn't borrow money ever again, is there any reason he should not file bankruptcy? The eldest daughter is set on taking care of all this her self and it worries me.

Attorney Answers 4

Posted

In my opinion, unless he has sizeable assets, given his limited income, and the fact that the creditors cannot get any payment from his kids, what is the benefit of filing BK? The creditors only recourse is to file claims with his deceased wife's estate (if she has assets which don't devolve to the husband), or file their claims with any estate the husband may leave after his death. Tell the daughter to contact me or any other AVVO lawyer offering a free consultation. Good luck.

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Posted

This is an interesting stance. I may contact you (or another AVVO lawyer) later tonight with his daughter. I figure the benefit is to get creditors off his back and to stop sueing him. I would love to get a better understanding of this situation. Are you suggesting that he could just ignore the debt instead of filing bankruptcy? He certainly can't pay it and I fear the children will step in and try to help, which should not be their responsibility.

Stuart Gregory Steingraber

Stuart Gregory Steingraber

Posted

From the limited information provided, it appears he is "judgment proof" a term used to describe a person who's assets are so limited that even a creditor with a judgment cannot satisfy the debt. Ignoring creditors in this situation is a very real option as long as the children understand they are not obligated in any way, shape or form to pay their father's debts.

Posted

IF his only source of income is SS and he has no assets, then he is "judgment proof." If he has assets (inherited from his wife?), he MAY want to consult with a bankruptcy attorney to determine if his assets are at risk from creditors. Good luck.

Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 26 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.

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Posted

We're still trying to figure out about the wife's 401K and the severance pay she started receiving just before her passing (lost a job she had for about 15 years I think). Aside from that, they have a house that will be lost no matter what, an old-but-in-good-shape Honda Odyssey, and not a whole lot else. Maybe some old jewlery and knick-knacks, other household items, almost all exempt I believe (California).

Posted

If his only source of income is social security then he is a very good candidate for a Chapter 7 bankruptcy. He should file it sooner rather than later as he must attend in person a hearing 30 days after he files and if he is in poor health then he needs to get that out of the way. As for the debt landing on the kids NO but if he has an probate estate that will have to be sold to pay the debt so he might as well get it out of the way while he is still alive so that he can pass things on unencumbered. Make sure he has no non-exempt assets before you file.

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Jason Blair Toon

Jason Blair Toon

Posted

I agree with Mr. Weil. Make sure he hires competent counsel because this is not the type of matter he can handle on his own (at least not according to your description of his capacity). Also, what Mr. Weil was referring to regarding the non-exempt assets is that the Ch. 7 Trustee may take possession of and administer (sell) them in the bankruptcy in order to pay off the creditors. Competent counsel can evaluate all of this and will usually provide a free consultation up front.

Posted

First, let me express my condolences for the loss suffered by and your fiance's family. However, now is not the time to be making any snap decisions.

In similar cases I've faced in the past, one of the first things I examine is the possibility of whether not the debtor will lose any property. Would filing bankruptcy mean that this person would lose him home? The risk of losing property is something needs to be considered.

is this person mentally and emotionally competent to testify at the meeting of creditors? Can he physically attend the meeting? These are factors that might also impact what an attorney might charge for the case as well.

A bankruptcy discharge could remove a lot of stress, but it can also have some undesirable consequences. I've been consulting with an unhappy couple who filed bankruptcy with another attorney who didn't realize just how much property they could be losing.

The best this to do is see an experienced attorney who can fully evaluate ALL of the circumstances.

First, the firm is a debt relief agency according to the U.S. Bankruptcy Code. We help people file for bankruptcy. We also do other stuff and we do it well, but Congress wants me to post this notice. Second, nothing on this site is legal advice. You are not my client unless you enter into a written agreement signed by you and me.

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Posted

From what I understand, the house is heavily mortgaged and has no real value to them. The house is going to be lost whether he files or not. They are not a wealthy family so I don't think there will be a whole lot of non-exempt property. As for his physical and mental ability to attend this "meeting" (this is the first I've heard of a meeting of creditors) I think the answer is YES. However, his psychological state, even before the death, is questionable. He seems very alert at times, then looses his sense of urgency and stops caring to think about difficult things. I don't think this is neurological. He is a relatively well-spoken man.

Carl H Starrett II

Carl H Starrett II

Posted

As the other attorneys have observed, someone who has social security as their only income and most exempt property, there is very little that creditors can do to collect the debts. They can her an attorney and file lawsuits, but collecting would be nearly impossible. Nonetheless, some people will file bankruptcy just to get rid of the debt-related stress. Finally, you father might have some form of dementia. it might be necessary to have a court appointed guardian to help him with the bankruptcy.

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