WHO INHERITS WHEN PARENT DIES AND THERE IS A STEPPARENT

Question:

My mother passed away last month and my stepfather is the surviving spouse. We have not been told of any will or life insurance. We have not had access to her personal items. She did leave us a payable on death certificate of deposit which my step father claims is his retirement life savings and is upset that she left that to us. I don’t know what I need to do. I read in a waiver that we daughters should be receiving 50% of all her assets and my step father 50% if there is no will. What steps should I take?

Response:

You need to contact an attorney at once. If there was a will, one result may be that you get nothing from the estate.  A child has no right to inherit from a parent if the parent does not want a child to inherit.  If there is no will, your stepfather would inherit with the children of your mother which include you.

Contacting an attorney will give you the information that you need.  Who will be the Personal Representative of the estate of the deceased parent is an important issue to be decided also.   You need to discuss all of these issues with an attorney at once to determine your rights.

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CAN I FILE BANKRUPTCY TO GET RID OF CREDIT CARD DEBT?

QUESTION:  I have credit card debt that I cannot pay. I would like to file bankruptcy. I have no personal assets. I need assistance with this process. What is the first step?

ANSWER:

You need to contact an attorney to help you determine if you should file for bankruptcy.  Just because you owe money is not a reason to file a bankruptcy case.  The damage to your credit is severe and you may not be allowed to file to discharge debt if your income is too high or you obtained the credit cards improperly or charged when you could not afford to pay back the money you owe.

ARE YOU PAYING THE CREDIT CARDS NOW?

If your income is not sufficient to pay your present living expenses, what happens if you file now?  If you incur additional debt, once you file bankruptcy you cannot file again for a long time.  Before you file bankruptcy, be ready to move forward with your life.  Before you consider filing bankruptcy, you need to make sure you have your future in order.   The decision to file a bankruptcy case should only be taken after full and proper consultation with an attorney.

You and your attorney need to determine if bankruptcy will help you achieve your goals for your future.  Of course, if you do not have a goal, then, how can anyone help you determine the proper course.  You have to decide what you want to do and how you are going to achieve the goals you have.

What do you want to do in five years and how will you achieve that goal is the proper question.  Will filing bankruptcy help you reach the long term goal?

YOUR FUTURE

A creditor cannot beat you or cut off your hand.  Never let a creditor dictate what you are going to do.  If the calls are bothering you, do not answer the phone.  Take your time and decide your next step in the rest of your life.   Do not let the creditors back any decision for you

Posted in Filing Bankruptcy Issues, GENERAL INFORMATION, Making the Decision to do Something | Leave a comment

Question: If I file for bankruptcy, do I have to give up my 401k?

One of the few answers that I can give that is relatively absolute is that a 401k is exempt in a bankruptcy case.  This means that unless there is some type fraud, your 401k is safe from the reaches of a Trustee in Bankruptcy, creditors or almost everyone with a possible exception of taxes owed the IRS.

You need to see an attorney who can advise you about your particular situation.  Nothing can be for certain unless a competent attorney reviews your entire situation including all assets, creditors and a determination is made of who may have a lien on your property.

Posted in Chapter 11, Chapter 13 Bankruptcy, Chapter 13 Bankruptcy Plan, Chapter 7, Creditor Seizing of Assets, EXEMPTIONS | Leave a comment

CAN I SELL MY HOUSE IF THE LOAN WASN’T REAFFIRMED IN A CHAPTER 7 BANKRUPTCY?

Question: Can I sell my house after the loan wasn’t reaffirmed in a Chapter 7 Bankruptcy?

Question : Debtor filed Chapter 7 years ago. In looking to get pre-qualified for a new home loan I find out that my loan wasn’t reaffirmed like I intended.  I have stayed current on all payments. My question is can I sell this house? What are my options?

Answer: In most Chapter 7 cases, a mortgage loan is not reaffirmed. Loans are usually not reaffirmed when they are part of a loan on real property. Most of the time, a Bankruptcy Judge will not even approve a reaffirmation on real property.

You say that you have made the payments so there is no dispute as to the payoff on the loan. The fact that you filed a Chapter 7 bankruptcy does not take away your ownership rights to the property. If you can find a buyer willing to pay as much or more than the payoff, you can sell the property to the buyer. The mortgage company is not entitled to anything more than it would have been entitled to receive if you had never filed a bankruptcy case.

You need to contact an attorney and go over the details of the case. Although it appears you could sell the property, you may have left out important details that would change the advice being given in this response.

Please call me, Nathan Davis, at 843.571.4042 to schedule an appointment so that we can discuss this matter further.

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WHAT HAPPENS IF I DON’T FILE BANKRUPTCY, AM I STUCK WITH THE DEBT?

Question: What Happens If I Don’t File Bankruptcy, Am I Stuck with the Debt?

Question Detail: My friend and I purchased a timeshare together. Our friendship apart, but he said he would pay the bill but couldn’t because he lost his job. Now the timeshare debt is in collections. My friend wants to file bankruptcy to discharge the debt.

Answer: The creditor is likely to come after you for the debt if the debt is discharged in a bankruptcy by your friend. You signed a document that probably makes you liable for the entire debt if the other person does not pay the debt. Of course, it is possible that you signed only as a buyer and your friend is the only one liable for repayment.

If you are liable for the entire debt or only a portion of the debt, you will either be forced to pay the debt, have a judgment entered against you or if you are lucky, simply have the fact that you did not pay the debt listed at the credit bureau which will damage your credit rating.

You need to have an attorney such as myself review the document to determine if you are liable and whether you are liable for the entire debt or only a portion of the debt. Meeting with an attorney such as me can help you find out what to expect and to make plans for your future.

Call me, Nathan Davis, at 843.571.4042 for an appointment to go over the documents with you.

Posted in Broke Emotionally & Financially, Filing Bankruptcy Issues, GENERAL INFORMATION, Making the Decision to do Something | Tagged , , , , , | Leave a comment

CAN THE BANK GARNISH MY WAGES FOR THE DEFICIENCY AFTER THEY REPOSSESSED MY CAR AND SOLD IT FOR LESS THAN THE AMOUNT OWED?

The bank repossessed the car and now the bank is saying that they will garnish my wages to get their money. I bought my car with a warranty and after it caught fire the insurance company refused to pay. I cannot afford to pay for the remaining amounts owed.

Wage Garnishment for South Carolina Residents is not proper for this kind of debt. I hope your employer is not a corporation located outside South Carolina as sometimes the employer will not understand that your wages are not subject to garnishment.

You need to talk to an attorney who can go after the lender. The threat to collect a debt by a wage garnishment is a violation of the South Carolina Fair Debt Collection Act. Taking the offensive and possibly even suing the lender may keep you from having a problem with an attempted wage garnishment. The lender may even be willing to forego any attempt to collect the debt as part of a settlement.

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