Legal Question in Wills and Trusts in West Virginia
Father's will
My father has given me his will stating what is to be distributed. He owes money on his mortgage and credit cards. If he dies will the bank and credit card companies be able to take the house and items listed in the will? is there a way to make it so they cannot take them?
2 Answers from Attorneys
Re: Father's will
This answer is not legal advice but only a general discussion of legal subjects. Only when all facts are known can advice be accurately given.
The mortgage is secured by the home; if you do not pay the mortgage, the home could be foreclosed. The credit cards are valid debts although unsecured. The probate process (in Florida) places each type of debt in order of priority. See Probate Code Chapter 733, Section 707 Order of Payment. Each state has different rules concerning probate. You should contact an attorney in the state where your father resides.
Re: Father's will
The laws of the state of the decedent's residence control probate, except for real estate situate in another state. The executor in West Virginia is required to well and truly administer the estate, which means paying just debts for which a proper proof of claim has been filed. Your father must consult a lawyer and tax advisor to work up an estate plan that suits his circumstances. It may require an intervivos trust, life time gifts, insurance, and other means to effect his intent.
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