Who Can File Bankruptcy
The answer is that any individual residing, domiciled, or having property or a place of business in the United States has the right to file a chapter 7 bankruptcy. That is according to 11 U.S.C. section 109.
To be eligible, the individual must have received a credit counseling briefing from an approved nonprofit budget or counseling agency in the 180 days prior to filing of the bankruptcy petition. The individual does not need to be insolvent.
The person does not even need to be a citizen. They may file a case in the bankruptcy court even if the person is not living in the United States.
Most times the debtor files for bankruptcy on his or her own behalf, but they may not file as a trustee or for another person. It may however be possible for a trustee of a trust by filing a case, to secure the benefits of the automatic stay and prevent the loss of property.
An incompetent person has also been held eligible to file a case under the bankruptcy code. Bankruptcy may also be filed for a person who is deemed incompetent pursuant due to a sufficiently large and valid power of attorney, when the evidence of the power of attorney is filed along with the petition. If there is a court-appointed guardian, only that person has the authority to file for the debtor.
Although the executor or administrator of an estate cannot file a bankruptcy petition because a probate estate is not an entity eligible to file a bankruptcy case. If the debtor dies during the case, especially if the case is a chapter 7, the case will usually continue. The federal rules of bankruptcy procedure number 1016 provide that death or incompetency of the debtor shall not abate chapter 7 case. When this happens the rule requires that the case is to be concluded, to the extent possible, as if the death or incompetency has not happened. The debtor’s interest may have to be represented by a personal representative with the legal authority to represent the debtor’s estate.
If you or your family needs to get out from a mountain of debt or protect you and your family’s future, you need to speak with an experienced, empathetic, and knowledgeable attorney like the ones at Chris Wesner Law Office, LLC. Give us a call to set up an in person or telephone conference for FREE. That’s right, FREE. Our initial consultation is 100% FREE, with NO STRINGS attached. There is NO FEE if you decide that bankruptcy is not for you. In fact, we OFTEN encourage our clients NOT to file bankruptcy.