QUESTION

Will I be responsible for paying my spouse's loans if he dies?

Asked on Sep 21st, 2014 on Bankruptcy - Illinois
More details to this question:
If my spouse has run up a lot of money in loans that he borrowed for farming and for farm equipment, who would be responsible for paying it back if something should happen to him (if he dies). He is the only one who signed the loan papers and the equipment is the collateral. He farms and we file joint taxes. He says that the equipment will cover the loans. But, if the equipment is sold wouldn't I have to show capital gain on this? He won't get any life insurance to help cover anything should something happen to him. What options do I have to protect myself? Could they go after my 401K for payment? I don't want to save all my life for retirement to find out it could be taken and used to pay off farm debt and have nothing left over to retire on.
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2 ANSWERS

General Practice Attorney serving Belvidere, IL at Law Offices of Henry Repay
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It would be helpful for you to meet with an estate planning attorney to address your own needs regardless of your husband's, as well as to better cover your questions, but most of your concerns will likely be unfounded. The lender cannot come after your separate assets. To the extent the equipment is sufficient to cover the loans, then the equipment will be recovered and that would be the end of it. I would be concerned, however, whether the equipment, in those circumstances, would yield the value needed. Further, losing it eliminates many options on what you could do as far someone else assuming his farming operations (which may or may not be desired/advised). Your 401(k) would be an exempt asset, even from your own creditors. So, that is not a concern. Do everything possible to avoid tapping into your 401(k) for any reason whatsoever prior to retirement. It really sounds like it would be very worthwhile for you to meet with an attorney face to face for planning purposes. It may be advised to retitle some assets, perhaps use trusts, etc. You may also be better armed to have a responsible discussion with your husband once you have received feedback relevant to your exact circumstances. I wish you the best with this.
Answered on Sep 23rd, 2014 at 11:07 AM

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Debt Collection Attorney serving Chicago, IL
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It is unlikely that you would be liable on the loans. The Equal Credit Opportunity Act entitles one spouse to obtain credit on his/her own credit without involvement of the spouse. If the farm equipment is sold there could be a capital gain; whose gain depends on how the equipment is titled. Your 401k is exempt. You could get life insurance on your husband, in that you have an insurable interest; he would have to know about it and whether it is a sound idea is up to you.
Answered on Sep 23rd, 2014 at 11:06 AM

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