Memphis Bar Association

Foreclosure/Mortgage Default

 Courtesy of Memphis Area Legal Services, Inc.

Click here to download information from Memphis Area Legal Services Inc. regarding Foreclosure.

What is a foreclosure?

It is the legal process through which a lender puts a house up for sale.  This is usually because of the homeowner has failed to make timely payments on their loan. Once the house is sold on the foreclosure date, it belongs to the person who bought it at the sale.

 If I get a letter from the lender telling me I am in default or am late on my payments, what should I do?

DO NOT IGNORE ANY LETTERS FROM YOUR LENDER

You should immediately call a HUD certified counseling agency that offers FREE counseling, such as Memphis Area Legal Services (MALS). The direct line at MALS for foreclosure assistance is 901-255-3444. Such an agency can contact the lender and determine whether your home can be saved from eventual foreclosure.

 If my lender has initiated foreclosure proceedings, what do I do?

You should immediately call a HUD certified counseling agency that offers FREE Counseling, such as Memphis Area Legal Services (MALS). The direct line at MALS for foreclosure assistance is 901-255-3444. Such an agency can contact the lender and determine whether your home can be saved from eventual foreclosure.

 If I am having difficulty making a mortgage payment, what should I do?

You should immediately call a HUD certified counseling agency that offers FREE Counseling, such as Memphis Area Legal Services (MALS). The direct line at MALS for foreclosure assistance is 901-255-3444. Such an agency can contact the lender and determine whether your home can be saved from eventual foreclosure.

 BEWARE OF FORECLOSURE SCAMS                       

 Should I have to pay money to get someone to talk to my lender or to try to save my home?

NO. 
Beware of offers to “fix” or “stop” your foreclosure for a fee.
Beware of offers to have the title to or ownership of your home transferred to someone else.
Beware of offers to lease your property back to you until your financesimprove.

 DISCLAIMER:  The preceding appears courtesy of Memphis Area Legal Service Inc., whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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 Social Security

Courtesy of the Social Security Section of the Memphis Bar Association

 I have applied for disability benefits and been turned down, what should I do now?

First off, be aware that you are not alone.  Last year in Tennessee, approximately 75% of applicants were denied at the initial level.  A large percentage of these individuals were able to appeal these denials to a hearing and eventually obtain benefits.  Therefore, if you feel that you are truly disabled from working, you should not give up merely because you’ve been denied.

 What difference does my age make in whether or not I am disabled?

Age is an important factor in the disability determination.  As a general rule it is much more difficult for a “younger individual” (a person under age 50) to get benefits than it is for someone over age 50.  Similarly, when you turn age 55, it becomes easier to qualify.

 What are Disability Insurance Benefits (SSDI)?

 SSDI is an insurance program run by the government and available for individuals who have paid a sufficient amount into the Social Security Trust Fund and meet certain medical eligibility requirements.

 Who qualifies?

To qualify for these benefits you must meet two requirements: 

         1. Sufficient Credits – This will depend on how much you have paid in FICA taxes

         and how recently you have paid them.

         2. Medical Eligibility – You must have a medical condition that given your age, education and previous work experience keeps you from performing your past work or any other work in the state or national economy.

Features of SSDI

         1.  If you qualify, you will become eligible for Medicare two years after you were determined to be disabled.

         2. You may be eligible to draw benefits off another person’s account.  Widows/widowers, disabled adult children and minor children of a parent who is drawing benefits, may all be eligible.

What is Supplemental Security Income (SSI) ? 

Supplemental Security Income (SSI) is a needs based program that was instituted to provide a basic level of support to those not able to work, but who have not paid in a sufficient amount to qualify for SSDI.

 Who Qualifies?

You must first meet the same medical eligibility test used for SSDI (see above).  However, unlike SSDI, to qualify for SSI you must have limited “resources.” Typically, this will mean under $2,000 in assets for a single individual and $3,000 for a married couple.  Monthly income from any source is also considered in determining whether you are entitled to SSI.     Generally speaking, the more resources or income you receive, the lower your SSI check will be.  If you consistently have too many resources or income, you will not be entitled to benefits at all.

Please note: Social Security’s rules on what constitutes a resource can be confusing. For instance, a family member allowing you to sleep on her couch for a month without charging rent will often be considered as a resource to you and result in your check being reduced.  To read more about these rules, please visit the Social Security website at www.ssa.gov or consult with an attorney.

 Features of SSI

         --If you qualify for SSI, you will immediately be eligible for Medicaid (Tenncare).

         --Unlike SSDI, benefits under SSI only apply to the claimant, so children and widows are not eligible to draw off of your benefits.

 Why does it take so long to get a hearing?

Memphis, like everywhere else in the country, is experiencing long delays in processing Social Security claims.  This delay is even longer for individuals who are waiting for a hearing before an Administrative Law Judge.  It is not uncommon for a claimant to wait two to three years from the filing of a claim for benefits until they see a judge.  The main reason for these delays is that the Social Security Administration has been severely underfunded over the past several years.

 I am thinking of applying for disability. What can I do to help get my benefits approved?

The single biggest problem in obtaining benefits is a lack of medical documentation.  Simply put, many deserving individuals lose their cases because they do not have medical records that support the very real problems they are experiencing.  If you think you may be applying for disability down the road, the best thing you can do today is discuss your problems with your doctors and make every effort to receive ongoing treatment for your conditions.

 I am receiving benefits or have formerly received benefits and I have received notice that I have been “overpaid.”  What do I do now?

You have a right to a) appeal the overpayment, b) ask that the overpayment be waived/forgiven, c) work out a payment plan with Social Security. If you don’t respond to an overpayment notice, the SSA has the right to take the money from your future benefits or seize a tax refund that you might be owed. 

 DISCLAIMER:  The preceding appears courtesy of the Social Security Law Section of the Memphis Bar Association, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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 Wills & Probate

Courtesy of the Wills & Probate Section of the Memphis Bar Association

Am I required to have an attorney in Probate Court?

In general, a person has the right to represent oneself in legal proceedings. However, the courts will not allow a person to represent oneself in his or her capacity as a fiduciary, such as executor, administrator, conservator, or guardian. The reason for this distinction is that, in those capacities, there are other people involved, such as heirs, beneficiaries under a will, or creditors. While serving as a fiduciary, the person is representing all those other persons, and not just representing oneself. He or she must therefore have an attorney.

 Do I have to probate a will?

No. However, if a decedent owned assets in his/her individual name it is doubtful that they can be transferred without some type of probate proceeding.

 Do all assets pass under a will and/or through probate?

No. Some assets pass by beneficiary designation and are not subject to your will or probate.  Common examples include life insurance, retirement plans, or payable on death bank accounts.  Additionally, assets that are owned jointly with right of survivorship pass to the joint owner, regardless of what your will says.

 How long do I have to probate a will?

There is no set time required by law. Once probated the will relates back to date of death.

 What is the average cost to probate a will?

There are different types of costs. There are court costs. Unless there are many claims and other litigation the total court costs should be less than $400. There may be other fees that are dependent on the size and nature of assets. These fees are typically incurred for legal proceedings, for appraisals of real and personal property, and for the preparation of tax returns. No two estates are alike and it is very difficult, if not impossible, to determine what is average. There are also costs incurred in actually transferring assets. The probate process gives someone the right to transfer assets. There are additional costs involved in order to exercise this right. A full list of court costs can be found at http://co4.shelbycountytn.gov/court_clerks/probate_court/crt_cost_06.pdf . These costs DO NOT include attorney fees.

 Who inherits my property if I do not have a will?

The persons entitled to inherit if you do not have a will are listed in  T.C.A. Section 31-2-104, if you are a Tennessee resident upon your death.  The deceased’s spouse and descendants inherit first, provided that a spouse inherits a minimum of 1/3 of the assets.  If there is no living spouse or descendants, then the deceased’s parents inherit equally.  If the parents are not living, then the deceased’s siblings inherit.  If some siblings are living and some are deceased, then the share that would have passed to the deceased sibling will pass to descendants of the deceased sibling. If there are no living siblings, then the assets pass 1/2 to the maternal and 1/2 to the paternal grandparents.  If either set of grandparents is not living, their half passes to their descendants. 

 What is the maximum amount that I may own at death and not pay “death taxes?”

First, there is no tax due if all of your assets are passing to your spouse and he/she is a U.S. citizen.  If your assets are passing to anyone else, Tennessee has an Inheritance tax on anything you own at death that exceeds $1,000,000.  The tax rate starts at 5.5% and gradually increases to 9.5%.  There is also a Federal Estate Tax, with the same rules as above regarding assets passing to U.S. citizen spouses.  The U.S. government taxes any assets greater than the federal exemption amount.  The federal exemption amount is $2,000,000 for deaths in 2008 and $3,500,000 for deaths in 2009.  For 2010 only, there is currently scheduled to be no federal estate tax.  In 2011 and years thereafter the federal exemption reverts back to $1,000,000, unless Congress and the President pass new legislation before then. 

 Can my parents give away all of their assets and then qualify for Medicaid so it will pay for nursing home costs?

No, not if your parents apply for Medicaid within 5 years of giving away assets.  This “lookback period” was previously 3 years but is now 5 years.

 What if my question isn't answered here?

If you have questions that are not answered here you may call the Shelby County Probate Court Clerk at (901) 545-4040.

 How old does one have to be to make a will?  

18

 How many witnesses are required for a will to be valid?

If the will is typewritten, or written by someone other than the person signing the will (a testator), then the will must be witnessed by two persons who must actually see the person sign the will.  Then, the two witnesses must sign the will in the presence of the testator and in the presence of each other.  All signatures must be notarized.

 Is a handwritten will valid in Tennessee?

Yes, as long as the will is written entirely in the person’s handwriting and bears his/her true and genuine signature.

 Does a handwritten will need to be witnessed or notarized?

No, not as long as the will is entirely in the person’s handwriting and bears his/her true and genuine signature. (However, the will must be proven in court by two witnesses who were familiar with the handwriting of the testator.)

 What happens if I die without a will?

Your assets will pass as directed by the laws of the State of Tennessee. 

 Is a will executed outside of the State of Tennessee valid in Tennessee?

Yes, if the will was executed according to the laws of another state, it is valid in Tennessee. 

 DISCLAIMER:  The preceding appears courtesy of the Wills and Probate Section of the Memphis Bar Association, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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