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Asked 11/23/2009

Estate and Mortgage Payments

I have about 100k in my 401K. I have named my survivors beneficiaries on this account so it will pass through to them outside of probate. I also have a property that I am upside down on. If I pass away, will the bank go after funds from my 401K or can they legally only go after funds that are probated in terms of the house payments? Otherwise, what happens if the bank forecloses on the property. If it is sold for more than the loan, will my heirs recieve the difference if my will states such?

 
 
 
 
 
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Answer 1/2 - Submitted 11/23/2009

2 very smart, no-nonsense, money people...consult their websites to start..

http://clarkhoward.com/
http://www.suzeorman.com/

Hope this helps!

 
 

Answer 2/2 - Submitted 12/3/2009

The important thing regarding legacies in estates is that they are all subject to the debts of the estate. First, the debts of the estate are paid; then the specific legacies are paid. So, the idea would be to make sure assets pass to beneficiaries outside of the probate estate if there are large debts expected in the probate estate.

Insurance proceeds pass contractually outside of probate. So do joint bank accounts and other joint property. And, so does property such as 401Ks, IRAs, etc.

The chances of being nailed for a defaulted mortgage might be slim, though. Most debts also have an age limit and do not live forever. You should check to see how long in your jurisdiction a mortgage loan is collectable. It is possible that, happily, you could live long enough that the debt "ages out" and you are no longer responsible for it.

 
 
 
 
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