What You Need to Know about an Advanced Healthcare Directive


A Short Explanation of an Advanced Healthcare Directive


Jonathan: Hello, I'm Jonathan Barlow, I'm an estate planning attorney at Clear Counsel Law group. Today we're talking about advance healthcare directives, what they are, whether you should use one, how you might be able to change them. What is an advanced healthcare directive? It's a document where you can sign and state what you want done in end of life decisions. Sometimes called a do not resuscitate order, it's "Pull the plug" we say colloquially.

What do want done at the end of your life. Do I want to remain on life support? Do you want to receive artificial nutrition or hydration through a feeding tube? When do you want your life to be able to be ended? Those are directives and things that you can state and make those decisions clear in a healthcare directive.

Along with a Healthcare directive we often do what's called a healthcare power of attorney. That's where you get to mane somebody as what's called your agent, name somebody to make those decisions for you when you're not able to make your own healthcare decisions. If you're not able to talk to your doctors this allows your agent to talk to your doctors and make those decisions for you at that time.

Of course they would want to follow the directives that you put in your healthcare directive but at least you have somebody there on the ground to talk to doctors and make those decisions in that situation. Now, how do you change a healthcare directive? Say later on down the road you decide that you do want to receive life sustaining treatments for a certain period of time to give a hope of recovery or vice versa, you decided, "No I would want life sustaining support removed."


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You can always change your healthcare directive as long as you have your mental capacity. Which means as long as you understand what it is you are doing and what you want to accomplish. In order to amend it or change it, these documents are relatively simple. We basically do a new healthcare directive for you. We'll take your old one, we'll tear it up, throw it in the garbage can, we'll burn it, revoke it. We just want to get rid of that old one so there's no confusion.

You can always amend it, you can always change it as long as you understand what you're doing at the time. Now, sometimes people say, "I don't really now what I want to do at end of life. I don't know whether I want to be kept on life support. Should I still do this document if I don't know what I want to do?" The answer to that is definitely yes.

If nothing else, signing one of these documents again allows you to name somebody to make those decisions for you. It avoids the situation if you didn't have a healthcare directive or if you didn't have a healthcare power of attorney and you became incapacitated, not able to talk to your doctors.

The only way someone would be able to make those decisions for you is to go into guardianship court, open a guardianship case and have the guardianship court involved in the process of your healthcare decisions. It becomes very cumbersome, it becomes time consuming.

It's expensive to go that route, which all could be resolved by doing a simple healthcare power of attorney document. Brian has a question about advanced directives.


Brian:    Yes, a quick question. If the power of attorney doesn't follow the designated healthcare directive, what happens then?


Jonathan: That's a great question. So you've named someone that you thought you thought you could trust to make these decisions as your agent and you've said, "These are my decisions that I want you to follow" and the agent's saying, "I can't do that. I'm not going to do that." What happens in that situation?

The short answer is they would really cause a lot of problems. The most likely scenario is that it will eventually lead to a court action again. Probably again a guardianship court situation. Where again, the court will become involved in just determining whether to follow your written decisions or whether to follow up what the agent is trying to do.

It could cause problems and that highlights the importance of what we were talking about a moment ago, which is unique to name somebody that you can not only trust to make those decisions but that you can trust to make those decisions in a very difficult time. It's a difficult time for them, it's a difficult time for you and it's a highly emotionally charged situation.

A lot of people that we trust and love won't be emotionally able to make those decisions at that time. You need to find somebody who has a strong will and who understands very clearly what you want them to do in those situations and would be willing to follow what you wanted to do. There's a lot of thought process that should go into this as you think about this important decision of who should make those decisions for you.

Otherwise like I said, you're going to find yourself in an even worse situation with guardianship court involved. Fighting between the doctor's and your agent and you're family. All situations that don't need to happen at that time in your life.

We've talked a lot about advanced healthcare directives, healthcare power of attorneys in this video. I thank you for watching the video. If you have other questions about it, more specific questions feel free to give me a call or any of our other attorneys at Clear Counsel Law Group and we'll answer your questions about healthcare directives and healthcare power of attorneys.

The Effect of Including Your Mortgage in Your Chapter 7 Bankruptcy


Considering Your Mortgage When Converting to a Chapter 7 Bankruptcy


Hi, Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. I had an email sent to me, I'm going to read it here. It says "I have converted from a Chapter 13 to a Chapter 7 and included my mortgage. Will I have to leave the house after it has been discharged?"

I have to make a couple of assumptions here because I don't have quite all of the information. However, the assumption that I'm going to make is that the Chapter 13 case was filed on this individual's behalf, and they originally included the mortgage to try and save the home. However, at some point something happened and they needed to convert to a Chapter 7 and they're now including the mortgage as part of the discharge in the Chapter 7, and they will not be paying on the house moving forward.

There's a very good possibility in this situation that a person who has converted from 13 to a 7 will have to eventually leave their home. Now, there may be situations where you can still keep your home, but it's probably going to depend upon your ability to get back in good standing with the mortgage lender. Whether that mean curing the default or the arrears that are outstanding on the loan, or whether you are able to obtain a loan modification that puts you back in good standing and either rolls in the arrears into the back portion of the mortgage or re-amortizes the loan so that you are currently found to be all caught up on your monthly payments.


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With that being said, the Chapter 13 is the best way to be able to ensure that you can keep your home because you force the bank into a repayment plan that allows you to cure the arrears within a plan that's approved by the court, where you're paying back the arrears over a 5 year period, but in a Chapter 7 bankruptcy, you don't have that time involved. It's a 3-4 month process and it's over very quickly. You're probably looking at a shorter timeline to be able to stay in your home in a Chapter 7.

If you're concerned about your ability to keep your home, there may be some methods outside of bankruptcy that would allow you to keep your home, such as the Nevada Home Foreclosure Mediation Program or other like services. If you're trying to keep your home in a post-bankruptcy situation, please come and see me and I'll give you the best advice that I can as a former representative of bank lenders. I'm familiar with the processes and can give you good advice on the best way to give you the best chance at keeping your home. Until next time, I'm Matt McArthur at Clear Counsel Law Group. Hope to see you soon.


Three Essential Estate Planning Tools You Must Know


The Three Estate Planning Tools Everyone Needs to Know


Jonathan: Hello. My name is Jonathan Barlow. I'm a estate planning attorney at Clear Counsel Law Group. Today, we are talking about people who have relatively few assets and what estate planning tools they might use in order to transfer those assets after they pass away. I want to talk about three tools that they might use today. The first is a will. The second is joint ownership. The third is beneficiary designations.

In order to illustrate how these three tools might work, let me introduce you to one of my hypothetical clients. Her name is Helen. Helen lives here in the Las Vegas area. She has two children, Bob and Suzy.


An Estate Planning Hypothetical

Helen's estate basically has three assets. She has a condo, has about sixty thousand dollars in equity in the condo. She has her bank account and the bank account has three, or four, five thousand dollars in it. She has a car that she's paid of. The car is worth five or six thousand dollars. Now, Helen, can use all three of these tools to help transfer her assets after her death.

The first thing that she really should do is to prepare a will. A will is a document where Helen can say who she wants to receive her assets after she passes away, in what percentages, in what amounts, under what conditions. Helen can also say in her will who she wants to be in-charge of that process. Who is going to be the executor, the person responsible to make that happen.

Helen can use the will to say, "I want to split my assets equally between my two children." She could also say, "I want to give Bob seventy percent and Suzy thirty percent." Whatever the case maybe, she can say that in her will.

The second thing that Helen can also do is to use joint ownership as a way to transfer her assets after she passes away. What joint ownership means is that say she goes into her bank and explains to them, "Hey. I want to add Suzy on to my bank account." The bank make designations and changes on bank account to add Suzy as a joint owner and she owns it as the same time as Helen.

When Helen dies, the joint owner, in this situation, Suzy, becomes the one hundred percent owner of that bank account, simply by virtue of Helen passing away. Suzy would just have to take a death certificate into the bank, say, "Hey. Mom has passed away." The bank would essentially just give that money in that account to her without any other work necessary.


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The third tool that Helen might use to make it easier to transfer assets in a smaller size to say is beneficiary designations. The most common example of beneficiary designations that we think about would be a life insurance policy. Generally, if we have life insurance on our life, we name somebody as the beneficiary to receive that money after we pass away.

We can do the same thing with other assets. For example, in Nevada, there's a special form of deed that somebody can sign to name beneficiaries on their house. Helen could sign this beneficiary deed and say, "Upon my death, the house shall be transferred to Bob and Suzy."

After Helen passes away, Bob and Suzy prepare a document with her death certificate that notes that she's passed away and the ownership of that house transfers automatically to them without any other work. No probate work or other work required. It becomes a very easy way to transfer that condo that only had sixty thousand dollars in equity in it to her children after she passes away.

Those are three simple tools that can be used to transfer that and there's a frequent questions that Brian has right now that the people often ask me.


Brian: What if there's a will that has two beneficiaries, but the asset is being held in joint tenancy?


Jonathan: That's a great question. Again, same example. Helen has two kids, Bob and Suzy. Yet, she did just what I described earlier, she went in to the bank and she said, "I just want Suzy to get one..." She added Suzy as the joint owner of the bank account.

The effect of that is that even though she said in the will that she wanted Bob and Suzy to share whatever she had, the joint ownership designation, the joint account designation is going to trump the will. Meaning, Suzy is going to get that account one hundred percent with no legal obligation to share with her brother Bob. Even though the will says that were supposed to share it fifty-fifty.

Again, we want to be careful about how we use those joint designations to make sure that they do actually match up to what you want to do. You may say in the will, "I want to share it with him equally," but if you make a joint beneficiary designation or a joint account ownership for a beneficiary designation, there's contrary to that, those will apply and be enforced rather than what you say in the will.

With all three of these tools, the will, joint ownership, and beneficiary designations, there are pros and cons to how they're used. You want to be careful that that matched up with what you want to accomplished and that they do what you've said they want to do.

If you have any questions about this and want help with discussing these three tools and how they work for people with smaller estates, it's time to give us a call here at Clear Counsel Law Group.

Will a Bankruptcy Court Consider a Loan as New Income?


Is a Loan Considered New Income?


Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. A situation came about recently where an individual received a loan from a family member while their chapter seven bankruptcy was still pending. The question was whether or not this was income and if it would adversely affect their chapter seven bankruptcy case.

First let's think about reporting income in a chapter seven case. The main concern is making sure that an individual passes the means test, which is an analysis of the six months leading up to the filing of the bankruptcy case. What we're concerned about when we file your chapter seven case income-wise is how much income did you receive in the six months prior to filing bankruptcy and what your current monthly income is at the time that your case is filed.

With this being a loan that is after the filing of the bankruptcy case, it doesn't affect the analysis of what transpired in the six months leading up to the bankruptcy case. It's not going to have an adverse effect on the individual's bankruptcy case. The other part of this is that it's a loan. It's not truly income. This is something that's going to have to be paid back. It's a loan that is non-dischargeable since it was a loan that came into being after the case had been filed. This is money that has to be paid back. That's not a true measure of what an individual's income is.


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Now with that being said, we can apply this principle more broadly across the whole spectrum of types of loans that a person may receive. It doesn't apply just to loans from family members and friends. It can apply to a new car loan, a new personal loan from a bank. An individual's ability to receive these loans and acquire these loans while a bankruptcy is pending will probably be limited. Any new loan after filing bankruptcy is not a part of the bankruptcy analysis when it comes to the discharge or what the income of the individual is in terms of passing the chapter seven means test.

If you are in the middle of a bankruptcy and you have obtained a new loan, it's probably not the direction you want to be going in because the whole point of filing for bankruptcy is to get out of debt. However, I understand that emergency situations do arise and these situations do happen from time to time. If you're at all worried about something like this, please come and see me. I'll give you the best legal advice possible moving forward and we'll give you all the information you need to move forward. Take care.


Filing for Bankruptcy After the Revocation of a Discharge


What to do if Your Bankruptcy Discharge is Revoked



Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group.

Another question that we recently had submitted to us was whether or not a person can file for bankruptcy after the revocation of a discharge and in a prior bankruptcy case. That's a mouthful, so let's take a minute to talk about what that means exactly.

By "revocation of a discharge" - the discharge is the order at the end of the bankruptcy case, that wipes out the debt, or eliminates the debt. Revocation of that discharge means this person had actually gotten to the point in their bankruptcy where they received the order that wiped everything out, the discharge order, and then it was taken away. It was revoked. The question then, as we've broken that down, is can I refile for bankruptcy if in a previous bankruptcy I received a discharge that was taken away or revoked?


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Now, generally speaking, as long as there wasn't a court order specifically preventing you from refiling a case, then yes. Filling again another bankruptcy is possible. There's nothing that would prevent and individual from doing that. Once you have had an issue like this, you need to be careful because when you file your new bankruptcy case, the court is going to have access to all the records that were in your prior bankruptcy case. If there were issues that remain unresolved from the previous case, that resulted in the revocation of your discharge, then you may need to address that before you refile for another bankruptcy case.

This can be a very delicate and tricky situation to navigate on your own, and I would strongly recommend meeting with a bankruptcy attorney before refiling a case after a case has been revoked, or previously dismissed.

Please come in and see me, Matt McArthur, Clear Counsel Law Group. You can reach us at 702-476-5900 or you can visit our website, Clear Counsel and we'll get you scheduled for a consultation right away, and I'll give you the best advise possible for your situation.

How to Discharge Debt That Doesn't Appear on Your Credit Report


How to Address a Debt on Hampering You That is not Listed on Your Credit Report



Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. I recently had a question from an individual thinking of filing for bankruptcy. It was: How can I get a debt discharged that's not appearing on my credit report? This is a very good question because the first step that we do as a bankruptcy practitioner is to run your credit report so that we have a baseline of who your creditors are, and who you owe money to, and who out there is expecting to be paid by you.

Now what you want to do is when you get that credit report you need to review it make sure that everyone you owe money to is in fact listed on the credit report. That gets us to the point where if there's somebody that you know that you owe money to that is not on the credit report, how do we get that information. It would be quite obvious who you owe the money to and how much you owe them if they're trying to collect against you. If you're getting phone calls, if you're getting bills in the mail, that is an easy way to gather this information that's not on the credit report. That information can be added manually to your bankruptcy schedules after the credit report has been run.


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If you're worried about a particular creditor that is in current contact with you either by telephone or by mail, then you want to make sure and write down the name of the creditor, write down their mailing address, write down an account number, how much is owed to that credit, and if possible, when the debt was incurred originally, and what it's related to. All that information is necessary to provide to the bankruptcy court when your bankruptcy schedules are filed.

Now, if you are unable to find contact information for your creditor on the credit report or they're currently now calling you or sending you any letters, but you remember that you owed somebody money, that's a little trickier. If you find yourself in that situation, please come and see me, bankruptcy attorney Matt McArthur at Clear Counsel Law Group, and we'll use our sophisticated methods to track down this creditor's contact information and get you on the right path to ensure that that debt is discharged as part of your bankruptcy. The last thing you want to do is to file bankruptcy and not got the benefit of the bankruptcy because you couldn't give notice to one particular creditor. Please come and see me, Matt McArthur, and I'll help you out. Talk to you soon. Bye.

Why an Online Seller May Desire an LLC for Protection


Why an Online Seller Should Consider an LLC



Jonathan: Hello, my name is Jonathan Barlow. I'm an attorney here at Clear Counsel Law Group. I actually had a friend that this question came from recently. She told me that she created an online store where she started to sell some little nick knacks, some little crafts that she had been creating. She had starting earning a little bit of money and then kind of ... Some of her stuff went viral a little bit and she became very popular. She started making serious money. She asked me, "Do I need to think about creating a business? Do I need to think about creating an LLC or something like that to do my online business with?"

The answer to that question is maybe. It's up to you. You don't have to. There is no law that says you have to create an LLC to run your business. You can run it through yourself as an individual. That's called a sole proprietorship. The business is treated just as you are. There's no separation between you and the business.

The question of whether you should create an LLC really gets down to the question of accessing risks and rewards of the LLC. An LLC can give you asset protection. Meaning that is somebody had a dispute with the business and say they've got a court to tell the business that the business had to pay them money back on a judgment or something like that they would only be able to go after the assets that are in the business in order to pay that judgment. They wouldn't be able to come after you individually.


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If you're operating as a sole proprietorship there is no protection. Somebody that has a claim against the business could come after your personal assets. They could potentially get to your personal income. They could get to your personal bank accounts in order to pay a business related debt, because you didn't have that business set up to create that separation.

A second consideration is more of a practical consideration when you're doing this, which is often having an LLC gives a form or appearance of legitimacy as a business. People think they're doing business with an actual business and they may want to ... Make them more likely to do business with that person or with that business, rather than just an individual person. Those are some considerations you can think about in considering whether it's time to transition from a sole proprietorship into an LLC. Brian do you have a question about this?


Brian: A quick question. Will it be expensive for the online seller to form an LLC?


Jonathan:  In the state of Nevada an LLC is not really that expensive to create. The main expense you have to pay is you have to pay the state of Nevada a filing fee to create the LLC. Then on each year, an annual basis, you have to file an annual filing fee with the state of Nevada, right now that's a few hundred dollars on an annual basis to get that. To start it's about $400 or $500. On an annual basis it's about $200 to $250 to do that. It's not terribly bad, so that's another consideration. Is my revenue to the point that it justifies creating some more of these administrative type expenses that you're going to have to pay. If you're not making a ton of money it may not make sense to put money into an annual filing fee with the state, but if you're making quite a big amount of money then that may be a very, very small percentage of your business operations and it makes sense to get that protection through the LLC.

If you have questions about your growing business, your growing online business and you're finding it booming and you want to make sure that you're protected and your business is protected give me a call here at Clear Counsel Law Group and I'll answer your questions.

Will Declaring Bankruptcy Cause You to Lose Your Pet?



The Bankruptcy Laws and Your Pet


Hi, I'm Matt MacArthur, bankruptcy attorney at Clear Counsel Law Group. A common question that's received by me when I'm interviewing a client that owns pets is whether or not they'll be allowed to keep their pets in bankruptcy, and this is a very good question, because in our society we often think of pets as our family members. They're very close to us, they're part of the family. We feed them, we take them for walks, they're very loved and they feel like one of us. However, we need to remember that the law recognizes pets as property. Just like anything else in bankruptcy, when we're speaking about property, we need to determine whether or not it's something that can be protected. That brings us to the analysis of how much is your pet worth, and do we have a protection available to protect your dog?


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I have never seen a pet taken in bankruptcy, so there is good news on that front. Used pets tend to not go for as much as perhaps a purebred puppy, or a thoroughbred horse, or something along those lines. If we're talking about a simple house pet, it's extremely unlikely that you would lose this dog as part of the bankruptcy process. If you do have a higher priced type of pet, like a pure breed animal that's quite valuable, then you would want to definitely speak with an experienced bankruptcy attorney. If you're afraid of losing your pet and you do have a more valuable type of pet, please come in and see me, and we'll discuss this in more depth and how it applies to your particular pet, and I can give you a very good sense of whether or not you'll be allowed to keep your pet in bankruptcy.

However, if I was afraid of you losing your dog I would definitely let you know. It would be the first time that I've seen it happen, but there's always a first time for everything, so you can't ever be too sure, especially if it's a dog that you care very much about, as I suspect would be the case. Please come in and see me, Matt MacArthur at Clear Council Law Group, and we'll discuss your ability to keep your pets in bankruptcy.

Filing for Divorce with Your Assets in a Revocable Living Trust


How to Handle Your Assets in a Revocable Living Trust if You Get Divorced



Jonathan: Hello. My name is Jonathan Barlow. I'm a probate and estate planning attorney here at Clear Counsel Law Group. One question that we often get asked in connection with our estate planning practice is: If I'm going through a divorce and my assets are held in a revocable living trust with my spouse, what should I do?

The short answer to that is that first you should make sure you talk to your divorce attorney about that so that that can properly be divided through the divorce process. I'm not a divorce attorney so I don't know how that part works, but if you're wanting to make plans because you know you're going through divorce and you want to make sure those assets are protected, you can make lists and create some separate interest in those assets by going through and designating your interest in those assets and separating out what's called the community property interest in that property. You can create documents, either a will or another trust, to hold your interest in the community property.


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In short, it's best to come in and probably create wholly new documents for yourself, whether a wholly new will or a new trust, to hold your interest in those marital assets. Now again, those are all still going to be subject to what happens through the divorce process and the property settlement agreements, the divorce decrees, things of that nature. The judge is going to able to allocate those, but you want to be able to protect your interests, make sure that if something happened to you in the interim before the divorce was finalized should you pass away that your interest in the assets go where you want them to go.

It's not really that much different than traditional estate planning even if you're not going through a divorce, because you still have these same questions you need to answer, which is: If I die, where would I want my property to go, whatever that property might be? Whatever that property might be will be determined by the divorce court, but you get to determine where that goes should something happen to you in the interim while you're going through the divorce process. Brian has a question about this.


Brian: Sorry, just to clarify, you're recommending creating an additional trust to hold your interest in the first trust? Is that correct?


Jonathan: That is an option to do that. As one of the co-owners of that trust, you have an equal interest, as does your spouse that you're divorcing, in those assets in the trust. It's a community interest, but you have the right to say what happens to your part of that interest. I would probably do it through a wholly new document. Like I said, through a new trust or a new will, just to create separation from the one that you're currently working with that's going to be split up anyways when you divorce. You don't have to do it that way. You certainly could do it through some form of an amendment to the current trust. You could take assets out of the trust, for that matter, and put them into your own individual name.

There are various techniques. The main thing is you want to make sure that you have written down and made very clear your instructions of what you want done with your interests, your property interests, should something happen to you when you pass away, or should you pass away. That's the best case scenario, best thing to do if you're going through a divorce, to make it very clear what you want done in that situation. If you have any questions about estate planning, if you're going through a divorce and don't know want to do about your assets, certainly give us a call here at ClearCounsel Law Group and we can walk you through this process. We'll help you review your current trust and make determinations about what you do need to put down in writing to make it very clear what should happen with your assets in the event of your death.


Are Overseas Assets Subject to a Chapter 7 Bankruptcy?



Must You Claim Overseas Assets if You Declare Chapter 7 Bankruptcy?


Matt: Hi, I'm Matt McArthur, an attorney at Clear Counsel Law Group. Regularly practice in bankruptcy, and one of the questions that I received from a potential client was, "I have assets overseas. I want to know whether or not I'll be able to keep those assets if I file for Chapter 7 bankruptcy." The answer is, as always, it depends. You have to keep in mind with a Chapter 7 bankruptcy, we're talking about a liquidation, which is the legal way of saying that the court has the authority to sell your assets that you cannot protect. What we look at then is what are you allowed to protect?

If you have assets overseas and they happen to fall within one of the allowable legal exemptions that we can take, then, "No, you won't lose those assets even though they may be overseas." Another reason that you may be able to keep the assets is if the value of the assets is low enough and it's going to be costly enough for the trustee to acquire those assets, investigate what those assets are and their value and to try and liquidate those assets, it might not make sense from a financial perspective for the trustee to get involved.


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In other words, if there's not going to be a net gain for the bankruptcy estate and for your creditors, it is something that you may be able to keep if the trustee abandons that property back to you as a debtor filing for bankruptcy. However, you do need to realize that everything you own, even if it's an overseas asset, is subject to the bankruptcy analysis and it may ultimately end up being liquidated to pay off your creditors in exchange for the bankruptcy discharge. Brian, I see we had a follow-up question on this.


Brian: You discussed the analysis done by the trustee to determine whether they're going to go after assets overseas. If someone came in with their overseas assets to you, would you be able to make an estimate for them whether or not they would be subject to the bankruptcy?


Matt: It would be a rough analysis. We can look at what the current estimated value of the property is and depending on the type of asset, we could determine how difficult it would be for the trustee to make contacts in this particular country and give a rough estimate of what the expenses would be involved in that. However, ultimate decision does lie with the bankruptcy trustee. The trustee has the ultimate say whether or not they're going to pursue the liquidation of an asset if it's something that is not exempt on your bankruptcy schedules.

If you do have overseas assets and you're worried about filing for bankruptcy and potentially losing them, please come and see a bankruptcy attorney like myself. We will go over this analysis. We'll give you the clear legal advice that you need to make the best decision for you in your situation. I'm Matt McArthur at Clear Counsel Law Group. I hope to hear from you soon.

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