QUESTION

How can I prevent a deficiency lawsuit?

Asked on Nov 01st, 2013 on Debtor and Creditor - California
More details to this question:
My mother died in Florida. She left me nothing. There is a lawsuit in Florida to foreclose her residence. I believe that when that lawsuit is over, they will sue me for the deficiency. What I can do before I'm sued to place myself in the best possible position to defend against this frivolous lawsuit or maybe even prevent it? Thank you
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1 ANSWER

Estate Planning Attorney serving Fremont, CA at Sommers Law Firm
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Generally you cannot be responsible for the debts of another.  There are some exceptions: There are two options to handle someone's estate after they die if there was not a Living Trust set up:  The first is to probate the estate.  In California if the assets are over $100,000 it has to go through probate.  The second is a small estate procedure which is much easier, quicker and inexpensive for a smaller estate.  In probate, the creditors much file a claim or they get nothing out of the distributions.  In the second instance, the beneificiaries could take on the liability of any unpaid creditors ONLY up to the amount they received from the estate.  This is California law, though, and Florida may be different. Additionally, there are two ways to foreclose on property - one is through a trustee's sale like you see most often here in California.  In this procedure there is no deficiency judgment available to the creditor.  The second way is through a judicial foreclosure and your question states that is the case for your mom's home.  A judicial foreclosure allows a deficiency judgment on any unpaid balance.    In your case, you mention that there is a lawsuit which could result in a deficiency judgment however here in California you would not be liable as you received nothing from her estate.
Answered on Nov 13th, 2013 at 12:03 PM

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