Debts and Death
February 27, 2012 5:43 PM   Subscribe

My father died recently. We're mostly past the grieving stage and into the dealing-with-his-lack-of-money stage. My mother has apparently been driving herself insane trying to figure this out. I just found out about it, and would like as much info, pointers, or anecdotes as possible so I can keep her stressfree. Details inside.

Marital status: Separated for 8 years but not divorced
Location: Texas

Assets: $1400 in checking, a busted up old car with a bill of sale but no title

Debts: $1700 on a (possibly joint) credit card, probably tons in taxes as he may not have been filing for the past 8 years. Mom is going to talk to the IRS to get details on that.

Funeral expenses: $1200

Lawyer costs to probate the will: $2000+, we do have a will, Mom is listed as executor. From what we can tell, you can't probate pro se in Comal County.

Here are my main questions:
- If Mom never probates the will, what happens? Can the debt collectors just take the money in the checking account? I'm ok with letting them have it, and hell even the car.

- If that's not viable, is there any way to probate without paying so much to a lawyer? The lawyer we talked to wouldn't really give any information on alternatives.

- What can we expect from the IRS? Keeping in mind TX is a community property state, if his back taxes and expenses are way beyond what little he had, is Mom responsible for the difference?

I'll keep the thread updated with new info as I get it.
posted by mad bomber what bombs at midnight to Work & Money (20 answers total) 3 users marked this as a favorite
Has Mom been filing her taxes separately for the past 8 years? My (non-accountant nor lawyer) understand is she's off the hook on his portion of the fed tax bill if they've been filing separate returns. She should look into Innocent Spouse Relief and definitely call the IRS as their CSRs are remarkably helpful.
posted by jamaro at 5:58 PM on February 27, 2012 [6 favorites]

Response by poster: Good point. Yes, she's been filing as "married filing separately". That Innocent Spouse Relief looks like it applies.
posted by mad bomber what bombs at midnight at 6:10 PM on February 27, 2012 [1 favorite]

I'd look into seeing whether proving that they lived separate lives might help relieve her of any responsibility for his debts, its ridiculous that she might be expected to take any part of it in the first place.

Would the IRS really go after her for his non payment? Does that actually happen?
posted by myShanon at 6:12 PM on February 27, 2012

$2000+ seems awfully high for such a small estate. Can you get another attorney's quote?
posted by Carol Anne at 6:20 PM on February 27, 2012 [2 favorites]

She should be able to call the bank and figure out if she's on the joint credit card or not. When my father died last year he was divorced from his wife but had neglected to take her name off of the bank account and she was legally entitled to half of it. I presume the same is true for credit card debt though I could be wrong. She should be able to get that information as the executor if she could somehow not get it as the wife.

I have no idea about the "what if she never probates" question and would suggest if at all possible getting a consult with an actual estate lawyer familiar with the jurisdiction for that one. I also agree that seems very high for attorney fees. I think it cost a few hundred just for the filing with the lawyer we used, and then a few other fees (the estate I am dealing with is complicated) plus hourly. I'd try to get a second quote. Most lawyers should do a free quick consult to at least gauge what you'd be dealing with.
posted by jessamyn at 6:26 PM on February 27, 2012

Response by poster: Ok, I'll talk to more lawyers. This guy does seem a bit shady. He said "but I'm already knocking $1000 off the cost!". Also, he made it sound as though the executor had a legal obligation, and wouldn't discuss not probating. My mom took that as him angling for more business, I took it as he was legally prohibited from speaking about it.
posted by mad bomber what bombs at midnight at 6:34 PM on February 27, 2012

The IRS is actually really good at helping you when you go in person. I'd go in and talk to them directly.
posted by dawkins_7 at 6:35 PM on February 27, 2012 [2 favorites]

Not accountant, not lawyer, not American, recently bereaved.

As I understand it, the purpose of probate is to make a will actionable, by giving other people who may hold contesting wills the opportunity to bring those forward.

If your mother doesn't stand to benefit by the will to the tune of more than it will cost to probate, it seems to me that her best option is simply to do nothing about it at all. Even though there is a will that names her as executor, I can't see how that naming could have any force until after the will has been probated; until that's been done, there's no certainty that it is in fact the deceased's last will. In other words: this doesn't need to be her problem.

If somebody else comes in here and tells you that this is terrible advice, you should probably believe them. But if I were in your mother's shoes, I would be doing nothing at all unless and until some court somewhere (as opposed to some lawyer somewhere) said I absolutely had to.
posted by flabdablet at 6:42 PM on February 27, 2012

I don't know Texas specifics but she can speak with someone at the courthouse (perhaps clerk of court) and they can describe steps involved in required paperwork. I did that for my grandmother's and my husband's paperwork in NC; that saved me from having the added expense of an attorney.
posted by mightshould at 6:48 PM on February 27, 2012 [1 favorite]

My condolences to you and your mother.

If all else fails, your mom can find out whether she's on that credit card by pulling her own credit report.


But here's what I learned from dealing with my parents' deaths. I will voice this decisively even though it's not legal advice and my experience is in different states from yours. The decisiveness is just for convenience.

There are basically four separate but related entities here with assets and liabilities: your mom, your dad, your parents' marriage, and your dad's estate. The estate came into being when your dad died; your parents' marriage ceased when your dad died, because Texas doesn't recognize separation as a legal entity, only divorce (and annulment but that's irrelevant here.)

Your dad's (individual) assets and liabilities turned into his estate's assets and liabilities when he died. If your parents' marriage had any (joint) assets or liabilities, they split along some line into the estate's A&L and your mother's (individual) A&L on your father's death, because the marriage ended as an entity with your father's death.


So your mom is now potentially as many as five people:
- herself (an individual with singly held assets and liabilities)
- your dad's wife (an individual with claim to shared assets and liabilities of the marriage)
- a beneficiary of the estate (who will inherit some of whatever's left after the estate's creditors are satisfied)
- the executor (who is responsible for ensuring the remaining assets are distributed according to the will and the Court's order)
- a creditor of the estate (if she used any of her own assets to settle estate debts)
- a debtor of the estate (if the Court decides she owed your dad anything on the basis of community property law or whatever other financial relationship they had, and if the Court doesn't just forgive the debt)


She can walk away from being a beneficiary, the executor, or a creditor. She can walk away from any assets. But she will still be responsible for her share of the liabilities of the marriage, and for any debts to the estate. (If the Court doesn't forgive them.) As the individual, she cannot legally be held responsible for the debts of the estate (which include but are not limited to funerary costs, costs of probate court, inheritance taxes), but that doesn't actually stop creditors from trying to get their dough. (Other than the IRS. The IRS is surprisingly fair-minded and even kindly about this stuff if only you talk to them before it snowballs.)

The executor may be held liable if the estate is distributed before debts are settled. The only reasons I can think of in favor of your mom serving as executor are to keep the estate's costs down by avoiding the appointment of a professional administrator and possibly, if it's legal in TX, to choose the order in which creditors are satisfied (i.e. if she or you up-fronted estate costs, to ensure you get paid back before the assets are depleted, instead of settling the bar tab or the visa bill first - but I bet the legality of this varies state-to-state.)
posted by gingerest at 7:33 PM on February 27, 2012 [3 favorites]

$2K is crazy high for probate of an estate worth less than $2K.
posted by Sidhedevil at 7:33 PM on February 27, 2012

I tried googling "probate small estate" and found this. Check out to see if any your father's estate qualifies for any of the simpler options.
posted by metahawk at 9:38 PM on February 27, 2012

I am sorry for your loss, and that you are going through this. As someone who went through something similar, I truly sympathize with the complicated feelings that come when grieving is combined with the frustration of complicated legal and financial situations. 2nding looking into the Innocent Spouse clause and visiting your local IRS office in person. The IRS was not especially helpful over the phone, but that may have been in part due to some language difficulties. On that end, finding a sympathetic estate lawyer who worked closely with an experienced accountant was hugely helpful. There are so many state-specific nuances in estate law that even those with top-notch legal experience (my friends, not me!) couldn't give much definitive advice, since we're not all located in the same state. So I agree about talking to more lawyers in order to compare costs and for someone who may be able to work with you at a more reasonable budget. Consider contacting your local bar association if you need more recommendations.

Here comes the part where I'm projecting, but you asked for anecdotes, so here you go: One of the hardest parts of this process was admitting that trying to understand all the legal stuff was beyond my capability at this time, and not the best use of my energy. I really wanted to figure it out with my google-fu, internet searches, and friendly advice, but it's exhausting and complicated. I put undue pressure on myself to solve or fix this for my mom, and I felt guilty that I couldn't play lawyer and accountant on the side. Try not to do this. Accept the fact that, yes, you are an intelligent and educated person and BECAUSE OF THAT you will find a legal professional to help you. It's not giving up, it's being wise. Also, when I was going through this, I really wanted someone to understand/confirm how bad it sucks to have issues beyond "My dad died, and I am sad about losing him." It really really sucks to mix grief with tackling finances, legal problems, etc. It's terribly confusing to have to be practical and "with it" when simultaneously just wanting to just be plain sad and in mourning. When I finally talked about it, I found a few people who had been through similar problems and it made me feel a lot less alone. Lack of will, back taxes, hidden finances... all of it was more common than I would have thought. On that end, finding a grief counselor or bereavement group might also help with the "staying sane" part of all this.

(Projecting over. :))
posted by NikitaNikita at 9:40 PM on February 27, 2012

Was your father a veteran?

Is your mother a veteran?

Are you active-duty military or honorably discharged?

The VA can help you. It will take persistence and badgering to get their attention, though.
posted by BitterOldPunk at 9:55 PM on February 27, 2012

Either you or your mother, if she is employed, might have some kind of employee assistance program through work. A lot of those include some limited legal/estate advice for free. That might give you some official advice to work from too.

If you talk to another lawyer, make sure to tell them that you spoke with someone else before. There are ethics issues for lawyers if they are seen to be "poaching" clients. Disclosure to them allows them to protect themselves. If they do help you out, it would suck to have a shady attorney file a complaint because he missed out on a fee.

However, we don't know all the facts, so he may have seen something about the case that really is going to cost that much in work. Make sure to find out if the attorney fee is a fixed amount or if he will be charging per hour and that is the minimum. If it is the flat rate, then that could help if it turns out to be more complicated.
posted by slavlin at 10:01 PM on February 27, 2012

I really wanted to figure it out with my google-fu, internet searches, and friendly advice, but it's exhausting and complicated. I put undue pressure on myself to solve or fix this for my mom, and I felt guilty that I couldn't play lawyer and accountant on the side.

Me too.

There was rather more in my mother's estate than in your father's. That said, I regard all the money we've spent with our lawyer as money very well spent.
posted by flabdablet at 4:05 AM on February 29, 2012

Response by poster: Well, one piece of good news so far -- the IRS says she's NOT liable, since she's been filing separately. Their own rules seem to contradict that in community property states. Maybe they've decided to enforce the same rules nationwide. Still, I'm hoping to get that in writing.
posted by mad bomber what bombs at midnight at 8:02 AM on February 29, 2012

You might also want to verify that the only way to be saddled with the obligations that come with being the executor of an estate is to be named as such in a probated will. I strongly suspect that none of this needs to be your mother's problem unless she chooses to make it so.
posted by flabdablet at 3:51 PM on February 29, 2012

Response by poster: flabdablet: I believe you are correct, and since we've made sure she's not liable for any of the debts we know of, my current advice to her is to do nothing. She's in the process of signing up for pre-paid legal service (not what I would've done, but whatever) to get some cheap advice. If they agree, we'll put this all behind us.

Thank you everybody for all the ideas and advice.
posted by mad bomber what bombs at midnight at 10:34 AM on March 1, 2012

Response by poster: The legal service agreed -- we should do nothing. The question of what to do with the car is still open, but of little importance. Thanks again!
posted by mad bomber what bombs at midnight at 3:04 PM on March 29, 2012

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