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Death may be the end of the road for many, but if someone is in bankruptcy then the case can still go on.
What if your loved one has filed for bankruptcy and dies before the case is over?
Does the bankruptcy case disappear, or does it continue?
How does it affect the administration of the deceased person’s estate?
What if it’s a joint bankruptcy case – and the other person is still alive?
Nobody ever said death was easy …
If The Debtor Dies During Chapter 7 Bankruptcy
If someone files for bankruptcy and dies before the case is over, that bankruptcy can – or in some situation, must – continue.
Chapter 7 bankruptcy creates an estate as of the date of filing, and that estate contains all of the person’s debts and assets as of that date. There’s no right to dismiss a Chapter 7 bankruptcy without court permission, so the debtor doesn’t have control over whether to continue to dismiss the action.
If the meeting of creditors has been held and concluded, the case will continue through to discharge. The lawyer will need to ask the court to excuse the requirement of a financial management certification unless it’s been done.
Related:
Things get thorny if the meeting of creditors hasn’t been held by the time the debtor dies. The administrator of the probate estate (or, if there is none, the next-of-kin) needs to go to bankruptcy court and be appointed as what’s called a next friend. That will allow someone else to appear at the meeting of creditors on the debtor’s behalf.
If The Debtor Dies During Chapter 13 Bankruptcy
If a Chapter 13 bankruptcy case is pending while the debtor dies, there are two options:
- dismiss the case; or
- proceed in the same manner, so far as possible, as though the death had not occurred.
The problem here arises if the case is a joint bankruptcy – two spouses filing together.
If you filed for bankruptcy with your spouse, you can dismiss the case as to him or her only. Your bankruptcy case will continue, but your spouse will be dropped and dismissed.
Related:
- Chapter 13 Bankruptcy Basics
- Federal Rule of Bankruptcy Procedure 1016: Death or Incompetency of Debtor
Can A Spouse Continue A Chapter 13 Alone?
When spouses file a joint Chapter 13 bankruptcy case, both of their incomes are considered in determining the Plan payment and term.
With one spouse dead, however, the income scenario changes markedly.
If you’re in an active Chapter 13 bankruptcy case that you can’t afford anymore, here are some choices to consider with your lawyer:
First, Split The Case. When you file a joint bankruptcy case, i’s actually two separate cases that are filed under a single docket number and handled together. You can split the case into one for you and the other for your spouse.
For The Deceased Spouse – Convert Or Seek A Hardship Discharge. Depending on the reason for the Chapter 13 bankruptcy filing, you can either:
- convert your spouse’s case to one under Chapter 7; or
- request a hardship discharge.
For Your Chapter 13 – Continue, Dismiss, Convert, or Hardship. You can convert, dismiss your Chapter 13 bankruptcy case, or seek a hardship dismissal without splitting the case. But you can also make these moves independent of the deceased spouse.
For example, you can split the case and dismiss the spouse’s Chapter 13. Then you could continue your own Chapter 13.
Or split the case and convert your spouse’s case to one under Chapter 7. Then dismiss your case.
The options are complicated, and seemingly endless.
Death Can Be The End Of Bankruptcy – But It Doesn’t Have To Be
As you can tell, there are lots of options when it comes to handling death in the context of a bankruptcy case. It all depends on your goals, the debts and assets at issue, and how you can fit those facts into the context of the law.
Lucky for you, the law’s not nearly as inflexible as the Grim Reaper.
Bringing you the most up-to-date news, tips and blogs throughout the web. Here’s your Bankruptcy Update for January 09, 2014 Loehmann’s liquidation sales begin Thursday One man’s journey through bankruptcy to reinvent Hamburger Helper Bankruptcy Bidding War Brewing for Packaging Maker Constar
One of the reasons why debtors are highly encouraged to seek legal representation when filing bankruptcy is to ensure their case goes through the system in a proper manner while avoiding common pitfalls. Filing on your own may seem simple enough when you are able to download documents online, but many have no idea what [...]
Since 1991, David Siegel has been helping people get out of debt in Chicago and in the suburbs. Over 75% of prior bankruptcy clients filed a chapter 7 bankruptcy. Chapter 7 bankruptcy is also known as fresh start bankruptcy. It allows someone who has unsecured debts to gain a fresh start within a matter of+ Read MoreThe post Chicago Bankruptcy Attorney Has Helped Thousands, Since 1991 appeared first on David M. Siegel.
More than half of all businesses formed today will be gone in five years. Statistics like that notwithstanding, Chapter 7 bankruptcy isn’t usually the best route to take for the corporation shareholders.
According to Statistic Brain, chances of small business success are slim over the long haul. From incompetence to disasters, a litany of mistakes can shutter your operations in short order.
Many small business owners turn to the corporate form as a way of protecting their assets. In so doing, they become shareholders of a corporation that owns the business assets.
But if the venture fails, the same protections from creditors that you’d get in a Chapter 7 bankruptcy don’t quite pan out for the corporation.
How Chapter 7 Bankruptcy Works For Corporations
Chapter 7 bankruptcy is used for liquidation purposes. A trustee is appointed to sell assets and distribute the funds to creditors.
For individuals and married couples, the end result is a discharge of personal liability for repayment of many types of debts.
Related:
Corporations, however, cannot be given a discharge. Though assets are sold, the end result of the Chapter 7 bankruptcy is … simply the closing of the case.
That’s because once the business is liquidated and everything sold, there’s nothing left. There is no business, no assets, no inventory. Though there’s no discharge, there’s no need for one.
Using Chapter 7 Bankruptcy To Shut The Corporation
Though a discharge isn’t available to the corporate Chapter 7 debtor, that doesn’t mean it’s of no value. To the contrary, a Chapter 7 filing may be exactly what you need to wind up affairs.
Filing for Chapter 7 bankruptcy may be an orderly way to sell off assets and pay creditors depending on the corporate situation. For example, if all creditors are unsecured then it’s a handy tool for organizing and prioritizing repayment and liquidation of assets.
Chapter 7 may also be a good way to help people who have cosigned and guaranteed loan repayments on behalf of the corporation. Liquidation of corporate assets will reduce the amount the individuals will need to pay once the dust settles.
First, Consider State Law Options
Sometimes bankruptcy’s the wrong choice for a corporation looking to wind up affairs. You take the risk that he trustee appointed to oversee the sale of the assets doesn’t have the familiarity with your industry necessary to fetch the best price. That, in turn, may lead to guarantors and cosigners being left with a greater burden after it’s all over.
Consider, then, state law options.
In many states, California included, a corporation can do what’s called an assignment for the benefit of creditors. Under state law, there’s a procedure for the corporation to take all assets and hand them over to a receiver for sale and distribution to creditors. The process functions similarly to a Chapter 7 bankruptcy for the corporation, but without the filing.
If a corporation’s debts are all secured by equipment or receivables, it could simply give up the security to the creditor and be done with it. Again, no bankruptcy involved.
Once that’s done, just close the corporation through dissolution under state corporation law.
Choose Based On Your Needs
Your corporation can choose to go through a Chapter 7 bankruptcy to wind up affairs, or opt for a remedy under state law.
No solution is perfect, nor does one size fit all. But if you analyze your needs along with the pros and cons of each choice, you’ll find one to suit your goals.
Have you accumulated traffic tickets you have been unable to pay? You may be able to eliminate the debt in bankruptcy with a few exceptions to the rule. Usually in bankruptcy certain debts related to government fines and penalties may not be eligible for discharge in Chapter 7 bankruptcy. But, Chapter 13 bankruptcy may help [...]
Solving your debt problems can be as tough as a blind man trying to describe an elephant.
In the story of the blind men and the elephant, three blind men all come together to describe the animal.
The men are blind, so their descriptions are limited solely to the area of the elephant they touched. One man says the beast is like a tree trunk, another claims the elephant is like a snake.
It’s only when a sighted man walks by and sees the entire elephant all at once do they realize that they’re all wrong. Without perspective and the ability to see the full picture, they’re doomed to incorrect solutions.
Same with your bill problems.
You’ve got a mountain of debts and no clear way of paying them. You can start throwing money at the problem, but without seeing the full picture there’s a good chance you’re not going to get very far.
Let’s put together another plan of attack instead.
Take A Step Back
If you’re too close to the elephant, all you see is grey skin. Take a step back and you’ll notice the rest of the animal.
So, too, with your debts. Look solely at one bill then you don’t have a sense of your entire financial position.
Your credit cards may be up-to-date but your student loans in default. Rather than worrying about the student loans, take a look into ways you can handle the credit card debt.
Step back even a bit more and consider why you need to use those credit cards in the first place. Is your cell phone plan too expensive, which eats into your grocery budget and requires you to use plastic?
Looking at your entire financial picture gives you the perspective you need to get to the heart of the matter.
Brainstorm Ideas
When you’ve got a problem, you come up with the same short list of solutions. But what about something totally off the wall?
For example, about a decade ago I found myself in a financial bind. Business was terrible, my local economy was in shambles, and a major referral source had gone out of business. My debts were spiraling and things seemed hopeless.
Then I brainstormed by sitting down with a pen and a pad of paper. No solution was off-limits, no matter how insane (so long as it was legal and ethical, it was on the table).
After hours of frustration, I came up with a workable plan. I gave my car back at the end of the lease and started using public transportation. I cut my cable service. I sold some extras books and CDs online (remember, this is before iTunes and Kindles).
In the end, I was able to keep afloat until business turned around. Without brainstorming, however, I would likely have been in deeper trouble.
Say (A Theoretical) Yes To Every Option
There’s no single solution to a problem. Rather, there are many ways to get the job done.
Debt reduction can come in many forms, from cutting up the credit cards to credit counseling to smarter budgeting and more. The problem is that we view each of those options from behind the filter of our own biases.
For example, let’s go back to the cell phone plan. What would happen if you switched carriers or plans? Would you lose your phone and, if so, what options are out there for you? If there’s a termination fee, run the numbers to find out when the cost savings evens out.
With credit card debt, pretend you enter a credit counseling program and play out the long-term impact on your finances. How much would you pay each month, and for how long? What’s the impact on your credit score, and will any negative effect be outweighed by your ability to save money for the future?
Run the options by saying YES so you can see how it all plays out.
Be Your Own Best Friend
Let’s say your best friend comes to you with a financial mess.
You’ve done all your homework, brainstormed for the best ideas, and know the pros and cons.
What solution do you recommend?
Going through this exercise helps you keep from going through life like the blind guys checking out the elephant.
Do What You Need To Do
Perspective is useful, but only as an academic exercise – unless you take what you’ve learned and use it.
Whatever solution you find to your debt problems, you need to go out and fearlessly execute on it. Without action, you’re just wasting your perspective and dooming yourself to hanging around with an elephant.
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Like others in Fresno and the central valley, you’re considering the benefits of chapter 7 bankruptcy. The holidays are over and you are avoiding or delaying your bankruptcy for the perceived negative impact it is going to have on your life.Good and bad – there will be consequences for filing bankruptcy. Here are 3 ways your life will change after you file your bankruptcy case:#1 Stress Will Go AwayMost of my bankruptcy clients delay filing for bankruptcy for years – even though they need it badly. Month in and month out you have endured the humiliating and harassing phone calls; will you be sued? Will your wages be garnished? I have watched clients come in the door with crazy with debt. They don't know where to begin...they do not know who or how much they owe. You can’t sleep. Your mind is filled worry. Worried about the present, worried about the future. Don't know where to go. Bankruptcy does not eliminate all of your worries. But it will phone calls, stop the worry about wage garnishment, and bring order to the financial chaos you have been enduring for way too long. And the less stress and worry you have, the more sleep you will get. Finally.#2 – Credit Card Debt Disappears Many people I help fall into the cycle of paying off one credit card with a second credit card – robbing from Peter to pay Paul. This can’t go on forever.Bankruptcy stops you from using credit cards. Best practices dictate to stop using credit cards 3 months before filing bankruptcy. I often get asked if it is possible to keep a credit card after filing for bankruptcy. You can't ... and that is a good thing.Many of the people I help have not used credit cards for years before filing bankruptcy because they stopped paying on their cards. They have learned already how to get buy on a cash basis. This is a good thing. Being forced to only buy those things that you can pay for now is a good habit to get into and will help you in never having to hire a bankruptcy attorney like me again.Some will think this is a good thing, but I don't: soon after you file for bankruptcy you will get flooded with credit card offers. These will be credit cards with terrible interest rates. I don’t recommend that my clients get any of them. It will be too easy to fall into old habits – only this time you will be paying super high interest rates and won’t have bankruptcy to fall back on; you won’t be able to file another chapter 7 bankruptcy for eight (8) years.If you must have a credit card I would recommend a secured card where you have to put money down as collateral before you will be issued a card. This can be a great way to re-build your credit after bankruptcy.#3 – You Will Get Back Control of Your LifeWhen you are in serious debt you lose control. You lose control of your phone. Every time the phone rings you have a physical reaction. You lose control of your bank account. You try to deal with the pressure that the collection agencies are putting on you by agreeing to payment plays where the creditor automatically debits your account each month.But it never stops. Every day you wake up not knowing what type of payments are going to be taken out of your account and worse if you will have the money to cover it.When you file for bankruptcy your creditors can no longer take money out of your bank account. They can’t garnish your wages. They can’t even call you on the phone. Think of that – actually answering your phone without fear of who is on the other end.I never try to sugar coat that bankruptcy can’t solve all your problems and absolutely has consequences when it comes to getting credit in the near future.However, for many dealing with serious debt problems bankruptcy will not only bring order back to your life – you may not be able to start rebuilding your financial life without it.Photo Credit: http://www.flickr.com
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