Central District Consumer Bankruptcy Attorney's Association

Your scenario is a little confusing, and a few more pertinent facts
would be helpful. The two children were automatically entitled
through intestate succession to 2/3rds of their mother's estate
pursuant to Probate Code Section 6401 if she was married at death.
As you noted, the kids are entitled to all of it if she had not died
prior to divorce being granted. What other relevant facts are
there? Any orders or agreements executed during divorce proceedings
regarding the assets? Is probate concluded, or is husband still
holding assetts as a fiduciary? Are probate assets all cash or was
there real property or tangible personal property that is still on
hand which were awarded to children? My two cents: If the probate
is finished, no prior orders or agreements executed during divorce
proceedings and assets all cash, it appears the debt falls under the
auspices of 523(a)2, 4 and/or 6,(Not much help in a 13), but if all
you have is a basic probate court order dividing an estate among
heirs, that seems a stretch to fall under 523(a)(15). Sounds like a
general unsecured claim to me. Any basis to object to plan based
upon lack of debtor's good faith in proposing plan?
Mark Jessee
> Here's one for Tilem...
>
> H&W are in the process of divorcing when W dies. H takes all of
W's property and income. There are two children (one of which
contacted me). Mom didn't have a will, so they all put their
claims into probate. The Probate court held that the children
should receive a certain portion of mom's assets because if she had
not died prior to divorce, then the children would have gotten all
of her share. (with me so far?)
>
> So now H files bankruptcy (I assume Ch. 13, but I'm not sure
yet). Kids want to know what they can do.
>
> Is this a 523(a)(15) scenario or does the fact that it came from
the probate court take it out of that realm?
>
> Do they just have a general unsecured claim for whatever the
probate court awarded them?
>
> *******************************************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173
> (818)509-1460 (fax)
> e-mail: bklawr@b...
> web: http://www.bklaw.com/
> This Firm is a Congressionally Defined Debt Relief Agency
>

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Mark,
Your facts need to be fleshed out more to make a complete analysis.
However, I'll give you a preliminary look based on the some assumptions.
You state that "H takes all of W's property and income." Did the wife die
intestate or did she have a will? What was the status of the divorce? Had
there been a jmt as to status, reserving property division or was there no
jmt as to status? These distinctions are very important in determining
property rights. If there was a bifurcation and status was single, then the
family court still has jurisdiction to make the property division. It sound
as if this wasn't the case since the W's estate was probated. Once W died,
the marriage is terminated and her estate consists of her half of the CP and
QCP and all of her SP. Unless there is a will or trust saying otherwise,
the CP and QCP all goes to H, with the SP being divided 1/3 to H and the
other 2/3 to children.
I think your client's issue is whether W's probate estate is CP and there
part of H's BK estate or whether it is not. If the probate court has issued
a decree of distribution or otherwise adjudicated the property's character,
then H's BK estate consists only of his half of the CP/QCP and his SP and
anything passing to him via the probate. Even if there were no decree,
inheritance rights vest at death and the BK court has no jurisdiction over
any property that doesn't pass to H.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green, Attorneys at Law
1010 E. Union Street Suite 206
Pasadena, CA 91106
Ph: (626) 449-8433
Fax: (626) 449-0565
pg23@earthlink.net
_____

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Here's one for Tilem...
H&W are in the process of divorcing when W dies. H takes all of W's property and income. There are two children (one of which contacted me). Mom didn't have a will, so they all put their claims into probate. The Probate court held that the children should receive a certain portion of mom's assets because if she had not died prior to divorce, then the children would have gotten all of her share. (with me so far?)
So now H files bankruptcy (I assume Ch. 13, but I'm not sure yet). Kids want to know what they can do.
Is this a 523(a)(15) scenario or does the fact that it came from the probate court take it out of that realm?
Do they just have a general unsecured claim for whatever the probate court awarded them?
*******************************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173
(818)509-1460 (fax)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
This Firm is a Congressionally Defined Debt Relief Agency

The post was migrated from Yahoo.