by linda
(olathe, kansas usa)

my cousin died, and the will he had was made 20 years ago. his sister is the excestor and i am listed 2nd. at the time of the will his 2 children were minors. they now are 23 and 20 years old. he still owes alot on his house and his truck. will these things have to go to probate? his son wants to live in the house and take over the payments, is this something he can do. they were told by an attorney to wait 6 months to sell anything. he has alot of medical bills since he died of cancer. do they need to sell the house and truck, or can his son continue to make the payments and live there.

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Apr 17, 2012

Yes, the estate of your cousin does need to go through probate (although if the value of the estate is small, it may qualify for a streamlined version of the process assuming his state of residence has one.). That process must be initiated by your cousin's sister as executor of his estate. She can do it herself by contacting the probate court or by working with a probate attorney.

During probate, all of the creditors that your cousin owed money to must be notified of his death so they can be paid from the assets in your cousin's estate. If there is not sufficient cash in his estate to pay his outstanding debts, then some of your cousin's assets will need to be sold. Only after the debts are paid can any remaining assets in the estate be distributed to his beneficiaries according to the terms of his will.

As for your cousin's home and mortgage, the bank is entitled to be paid for the outstanding balance in the mortgage. Therefore, if your nephew wants to keep the house (and assuming the home was not left to someone else in your cousin's will), he must pay off the mortgage. This may involve getting a new mortgage loan in his own name and using that loan to pay off the existing loan. It's also possible that the bank will agree to transfer the current loan into your nephew's name but only if it determines that he qualifies for the loan. However, all of this is complicated by the fact that your cousin died owing a lot of money to creditors. Therefore, it may be that the house must be sold to pay them.

I am not an attorney and I don't know the ins and outs of the laws in your state or of the deceased's estate and will. It's extremely important therefore that your cousin the executor and your nephew consult with a probate attorney to find out exactly what is and isn't possible. Without legal help, your nephew as well as your cousin the executor could create legal problems for themselves. Note: As executor, your cousin is legally responsible for ensuring that as many of the deceased's debts are paid as possible and so your cousin risks being sued by the deceased's creditors if they learn that that there were assets in the estate that could have been sold to pay them and were not.

Finally, it is important for you to know that if there is not enough money in the estate after assets are sold to pay all of your cousin's debts, those creditors who did not get everything they are owed are out of luck. They cannot come after anyone in your family for the money.

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