Inheritances iin Chapter 13

[Kingxray]

Hi all,

I've been looking through the archives at discussions regarding chapter 13 and inheritances. I'd like to bring up this topic again for discussion and opinions.

As some of you know, the trustee filed a motion for a 2004 examination of my father's assets. We have completed 60 months of the plan and paid creditors at 39%, with my father being one of the creditors. He passed away 5 months prior to us completing the plan. He had no will, beneficiaries and I am his only child. There are no other relatives other than my three children. In her motion the trustee claims my father's estate is property of the bankruptcy estate. Our lawyer disagrees. The plan was confirmed under 1327 where property is vested back to the debtors.

I've read a lot of cases/opinions on 541 and 1306 with different outcomes. What is your opinion on the subject? Why doesn't 1327 apply in these situations? I have a feeling our case is heading in this direction and I was just wondering what your thoughts were on this subject and what you would do. Thanks much!

[switch625]

I don't know if you've seen this case, which involves a postnup but pages 15-27 cover the interplay of Sections 541(a), 1306(a), and 1327 (b). In sum, the court ruled that "..from the date a Chapter 13 petition is filed,all pre-petition and post-petition property and all post-petition earnings received from services performed by a debtor are property of the estate under Sections
541(a) and 1306(a). Upon confirmation, unless the plan provides otherwise, all property of the estate (whether pre-petition or post-petition) vests back in the debtor under Section 1327(b). After plan confirmation, all property, including earnings, received by a debtor is property of the estate under Section 1306", under the "reconciliation approach" of harmonizing 1306(a) and1327(b)

[Kingxray]

Can you tell me which case you are referring to? Your link only took me to the home page of the Eastern District of PA. I am wondering if I am even an owner of my father's estate. There was no will, beneficiaries, life ins., etc.. If the estate was to go into probate then no one owns it correct? We've already completed our plan and if I didn't legally own it at the time of his death, how can the BK courts say it's their property?

[despritfreya]

I am wondering if I am even an owner of my father's estate. There was no will, beneficiaries, life ins., etc.. If the estate was to go into probate then no one owns it correct?

Your dad died "intestate" (without a will) Your State's law of succession applies. You would have to find your State's statute regarding such matters. You are most likely an heir under the statute along with his spouse (if any) and any other siblings you may have.

Des.

[LadyInTheRed]

If you are entitled to assets of your father's estate under state law, your entitlement to his estate is your asset whether or not you choose to go through the formal proceeding to claim the estate. Whether or not your interest in the estate is part of the bankruptcy estate is another question.

[Kingxray]

Thx guys. That clears that up. Now onward and upward to the next hurdle, the 2004 exam which will probably be followed by a motion to modify the plan, ugh. It feels like 5 years ago all over again!

[despritfreya]

Now onward and upward to the next hurdle, the 2004 exam which will probably be followed by a motion to modify the plan, ugh. It feels like 5 years ago all over again!

You will get through this. Let your attny be your guide and have a little faith.

Des.

[justbroke]

despritfreya thanks for helping out!

[switch625]

Can you tell me which case you are referring to? Your link only took me to the home page of the Eastern District of PA.

Sorry about that, thought I had the complete link. The link box won't let me copy a complete link. Go back to the site, go to opinions, go to 2010 (use all judges), go to the third opinion down with the debtor initials DC

[Kingxray]

Thx guys, I'll try to stay positive. With such varying opinions on these cases, I guess the question is whether to fight it or not. Thx switch, I'll check that case out!

[justbroke]

Kingxray the link is this one; http://www.paeb.uscourts.gov/sites/p...nd%20Order.pdf. It's In Re; David Clouse, 08-21825-REF, Bankr. E. D. Penn.