Can We Inherit the Car of the Deceased or Will a Car Be Used to Pay Creditors in Probate?
Full Question:
Answer:
The answer will depend on all the facts involved, such as the value of the car and whether a spouse and/or minor children survived the deceased. Under the statute below, the spouse/minor children may claim up to $2,000 of the personal property of the deceased against creditors.
28-39-101. Allowances to surviving spouse and minor children.
(a)(1) In addition to their homestead, dower, and curtesy rights, the
surviving spouse and minor children of a decedent, or either in the
absence of the other, shall be entitled to have assigned to them out of
the property owned by the decedent at the time of his or her death,
personal property, tangible or intangible, to be selected prior to the
sale thereof by the personal representative or after sale out of the
proceeds thereof by the surviving spouse, if there is a surviving spouse
or, otherwise, by the guardian of the minor children, when the personal
property is of the value of four thousand dollars ($4,000) as against
distributees or the value of two thousand dollars ($2,000) as against
creditors.
(2) The right to such an allowance shall vest in the surviving spouse
upon the death of his or her spouse, shall not terminate with his or her
subsequent death or remarriage, and shall become his or her absolute
property or the property of his or her estate upon death without
restriction as to use, encumbrance, or disposition.
(3) If any of the minor children are not children of the surviving
spouse, the allowance shall vest in the surviving spouse to the extent of
one-half (1/2) thereof, and the remainder shall vest in the decedent's
minor children in equal shares.
(b) Such furniture, furnishings, appliances, implements, and equipment
as shall be reasonably necessary for the family use and occupancy of his
or her dwelling shall be assigned to and vested in the surviving spouse,
if any, provided he or she was living with the decedent at the time of
his or her death.
(c) During a period of two (2) months after the death of the decedent,
the surviving spouse and minor children, or either in the absence of the
other, shall be entitled to receive from the estate such reasonable
amount, not exceeding in the aggregate one thousand dollars ($1,000), as
in the judgment of the court may be required for their sustenance, in
accordance with the usual living standards of the family.
(d) The provisions of subsections (a)-(c) of this section shall be
cumulative, and the provisions of subsections (b) and (c) of this
section shall apply as against creditors and distributees.
28-41-102. Payment, transfers, or deliveries pursuant to affidavit.
(a) The person making payment, transfer, or delivery pursuant to the
affidavit described in § 28-41-101 shall be released to the same extent
as if made to a personal representative of the decedent, and he or she
shall not be required to see to the application thereof or to inquire
into the truth of any statement in the affidavit.
(b)(1) The distributee to whom payment, transfer, or delivery is made,
as trustee, shall be answerable to any person having a prior right and
shall be accountable to any personal representative thereafter
appointed.
(2) However, if notice to creditors of the decedent's death and the
collection of his or her estate is published as provided by § 28-41-101,
all claims as to real property within the estate, in any event, shall be
forever barred at the end of three (3) months after the date of the first
publication of the first notice.
(3) Nothing in this section shall affect or prevent any action or
proceeding to enforce any mortgage, pledge, or other lien arising under
contract or statute upon the property of the estate.
(c) If the person to whom the affidavit is delivered refuses to pay,
transfer, or deliver the property as provided in this section, the
property may be recovered or delivery compelled in an action brought in a
court of competent jurisdiction for such a purpose by or in behalf of the
distributee entitled to the property upon proof of the facts required to
be stated in the affidavit.
(d) Under and pursuant to the affidavit described in § 28-41-101 and
after the notice to creditors of the decedent's death and the collection
of his or her estate is published as provided by § 28-41-101, the
distributee to whom transfer or delivery of any real property is made
shall be authorized to issue to himself or herself a deed of distribution
for the real property of the decedent as if made by a personal
representative of the decedent.