When a person dies without a will the state decides who gets what under the laws of intestate succession. However, before beneficiaries are paid debts, funeral and estate administration must first be satisfied. For an example of which debts need to paid and in what priority please see my article entitled Pennsylvania Probate: What Debts Take Priority at the following link: http://www.sjfpc.com/pa_probate_law_section_3392_estate_debt_priorities.html. Although this relates to PA law, in most states this is what needs to be done before beneficiaries can be paid.
For a sense of what is involved in administering an estate in most states, please see the following two articles: Estate & Probate Administration: Do Not Try This On Your Own at http://www.sjfpc.com/page1.html and Pennsylvania Probate & Estate Administration: Executor Duties at http://www.sjfpc.com/pennsylvania_probate_estate__administration_duties_of_executor_and_administrator.html
Hope this helps.
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Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is firstname.lastname@example.org , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is
LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is email@example.com , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.
Mr. Fromm gives you good advice. I am a NY attorney and cannot advise you as to your state's laws, but I can provide certain general information that may be helpful. In most if not all states, an intestate estate is divided between a spouse and children of the decedent. If the decedent was survived by both spouse and children the actual percentage will vary from state to state. You don't mention a spouse, so I assume there is none.
Debts have to be paid first. Often it is possible to negotiate the debt with the creditors, particularly if the debts would significantly drain the estate or if the cumulative value of the debt is greater than the available assets.
You may wish to consult with a local attorney.
Good luck to you.
Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.
I am sorry for your loss. In Texas, since your Aunt left debts owing, your choices are limited as to what type of probate process you must have. Choosing the correct option depends upon the assets (and debts) involved and if the heirs are in agreement on certain matters. If no formal administration of the estate is necessary, there are two options: 1. Small Estate Affidavit (estates of $50,000 or less, excluding homestead, and no debts other than perhaps a mortgage); or 2. Proceeding to Determine Heirship. If an administration is necessary, as may be the case here, there are still two options: 1. Independent Administration (if all heirs agree on the appointment of an IA); or 2. Dependent Administration (when all the heirs do not agree on the appointment of the administrator; or if the Administrator wants the Court to be involved with managing the debts and creditors; DA is the more expensive route). If either of these latter two options (IA or DA) is chosen, then along with the administration filing/proceeding, the administrator will also need to file an Application to Determine the Heirs (and the appointment of an ad litem attorney to assist the Court in determining the heirs of the estate). Often, when dealing with lots of debt and many creditors, a Dependent Administration is best since there are very strict guidelines that creditors must follow or their claims against the Estate are bared. I suggest that you speak with an experienced probate attorney to help you through this journey. I wish you the best of luck to you and your family.
The adult children will be able to live in or rent the home as long as the mortgage and taxes are paid, but i f they want to sell it they will have to apply for an administration and for a determination of heirship. A probate attorney can help.
In Texas, a homestead remains exempt from claims of unsecured creditors if there is a spouse, minor child, or an unmarried adult child living in the house at the time of the homestead owner's death.
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