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No assets, and now the creditors are calling

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S

samboysamgirl

Guest
What is the name of your state? NY

My father passed away a couple of months ago. He owned two houses (one rented) and had lots of unsecured debt. There is no will that we are aware of. My sister and I decided we would just let the banks foreclose on the two houses - both of them had high enough mortgages that we knew we would not be able to sell them for enough money to pay off the mortgage, RE commissions, back taxes, etc. My sister lives in FL, I live in Japan and my father died in NY so we were hoping to avoid the hassles. We paid the funeral expenses out of dad's bank account with nothing left over.

One of the banks has sent a court summons naming my sister and I as defendents as sole heirs and distributees of our deceased parents. The summons is so they can foreclose on the property. The attorney for the bank sent us an Admission of Service with Waiver and Limited Notice of Appearance for us to agree to waive the filing of any answer to the proceeding (basically agreeing to allow them to foreclose). If there is any money left over then we would get it.

That is fine with us, but our concern is that by allowing this to go forward, whether by signing the Waiver or allowing the court to find for the plantiffs that we will somehow be legally liable for our father's debt to the bank plus the costs of foreclosure and the back taxes.

Our questions are:

1) If we agree to the Waiver, will we be liable if the bank is unable to recover the monies due them? Will the judgement affect our credit histories?

2) If yes, how can we avoid this situation? My guess is that we would have to file probate papers and set up an estate so that the estate is served the summons instead and the judge can declare the estate bankrupt?

3) My sister recently received another summons, from who she has no idea, and if we are going to keep getting these would the probate filing at least make it easier to deal with them efficiently? Could the probate filing be in FL where she is rather than in NY?

4) My dad had a small life insurance policy and I was the beneficiary. My understanding is that the creditors of my dad cannot get that.

5) Can my dad's debtors in any possible way make us legally responsible for my fathers debt in excess of the assets he had (which were none)?

Thanks in advance for any advice. I know I need to get a hold of a NY attorney eventually, but any knowledge I can obtain now would help me put my mind at ease. I apologize for not being brief!
 


Dandy Don

Senior Member
Putting your names as heirs is only a formality/technicality in the rare event that if there was substantial money coming into the estate that the mortgage company would get paid first if there was an outstanding unpaid mortgage obligation. Now the mortgage company has the legal right to claim title to the home, in effect displacing the heirs rights to do so. I don't think you have to worry about it affecting your credit. You can not be held liable in any way for

Your father may have made enough payments to establish some equity in the homes, so at some point you will want to discuss with a probate attorney or real estate attorney or even with the mortgage company whether or not you will get a portion of the share if the mortgage company puts it up for sale.

Whatever you do, do NOT file to open up probate, since whoever is designated as official executor will be liable for getting the outstanding debt paid. It is better to not have anything filed for probate since the estate is techically bankrupt and unable to afford to pay for any oustanding debts/expenses.

It would do no good to have a probate filing in Florida. The only reason they sent her the summons is that this is where she lives and had to be served officially. Her responses can primarily be taken care of by her filling out any forms asking for information and her personal presence is not required in the New York probate court.
 

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