Property of the Estate & Inherited Property

11 USC 541(a) dictates that upon the filing of a bankruptcy case, an estate is created. This estate includes all legal and equitable interests of the debtor at the time of filing, and in certain instances, interests in property that arise after the filing of a bankruptcy within a certain period of time. Essentially, once the bankruptcy is filed, the resulting estate is comprised of everything the debtors owns.


One interesting situation that this applies to is in property title. What happens, theoretically, if a debtor needs to file a Chapter 13 bankruptcy to save her family home, only the home is still technically titled in the name of her deceased husband? While this hypothetical certainly combines other areas of law, most notably estate law, it actually is quite simple. Assuming, for this case, that there is either a will dictating that the decedent's property goes straight to the widow, or alternatively, that the decedent died intestate without any direct heirs beyond his widow, then 541(a)(5)(A) clearly indicates that the property, for bankruptcy purposes, belongs rightfully in the bankruptcy estate.

That section states that the estate includes "interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date... by bequest, devise, or inheritance." Therefore, since the widow clearly inherited full marketable title to the real estate by either of the instruments or acts of law above, the home that isn't recorded as being in her name is hers for purposes of the bankruptcy estate. As a result, the widow can take all forms of action on the home in the Chapter 13 (or Chapter 7), including saving it from foreclosure, paying off delinquent property taxes, or even surrendering the home through foreclosure.

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