QUESTION

Is the HELOC a community debt that can be allocated in probate court so that I am only responsible for half of it?

Asked on Aug 30th, 2014 on Estate Planning - California
More details to this question:
My spouse passed away. We jointly owned a home and it went to me by survivorship. We had a HELOC on the house. The HELOC was used for business purchases. We are going thru probate right now. I know that I need to keep making the payments on the HELOC or they can come after the house. He left his 1/2 share of community property assets to family from a prior marriage.
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3 ANSWERS

Trusts Attorney serving Sacramento, CA at Law Office of Victor Waid
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Boy, did you get tattooed here. Obtain the services of a beneficiary litigation attorney who can bring a probate action against the executor/administrator of the estate to challenge the disposition of the property and the liability allocation for the loan. Unfortunately, your position is not good if you do nothing, and the bank can foreclose; if the property is not yours, you may want to let the bank foreclose.
Answered on Sep 02nd, 2014 at 1:57 PM

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Probate Attorney serving Roseville, CA
Partner at James Law Group
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If you inherited by right of survivorship the asset as well as the debt are not part of the estate.
Answered on Sep 01st, 2014 at 6:46 PM

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The loan is secured by the house and those should go to the same person who gets the house. But there is a reasonable chance to shift the burden to those getting the business if you can argue certain items were purchased exclusively for business purposes and no personal use could occur and it was intended that money generated by the business would be used to pay the HELOC. You basically would be saying that you borrowed money to lend to the business so the business has to pay you the full amount back. I doubt there are any published case decisions on this topic. You could google it yourself to see if you can find something. Have you tried telling his heirs and seeing whether they would compromise [who ends up with the business. If his other heirs are adamant and/or a substantial amount is involved, go see an experienced probate attorney who would know if such a prior case existed. In interviewing several probate attorney about whether you will hire them, you can ask them if the argument is reasonable. I suspect that you and your husband never considered the problem, but if all moneys earned were put in one pot or he was the only income earner your position would be stronger.
Answered on Sep 01st, 2014 at 6:46 PM

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