A recent study reported that 73% of Americans die in debt. While the relatives of the deceased do not have to pay this debt, the payment will likely come from the Decedent's estate. A creditor has a right to file a claim with the estate to receive the compensation owed to them. This is done through the process called Probate.
Probate is the process through which estate are settled up. Probate occurs when someone dies without an estate plan and when someone dies without a Will.
If you are owed money by someone who is dead, you may be worried that you do not have recourse. That is not the case. In this article, I will discuss how you, as a Creditor, can get paid back from the person who owes you money through the Probate process.
Creditors and Claims
If the Decedent (i.e., the person who died) had a Will, the estate will likely have to go through the Probate process so long as there are assets which are subject to Probate. What this means is that so long as the Decedent did not have beneficiary designations to their assets during life, their Will must go through Probate.
If the Decedent died Intestate (i.e., without a Will), then their assets must go through Probate in order to get settled up. This is done by filing paperwork with the court to determine who is considered their rightful heirs.
As a creditor, your claim will be filed through the Probate court in both scenarios. However, your claim does not always guarantee repayment from the estate. Filing the claim simply announces to the Probate court that you are requesting payment for the debt that the Decedent, or its estate, owes you.
There are a couple of different pitfalls that you should be aware of. In Missouri, for estates worth less than $15,000, you will have no recourse as to the debt, meaning you will not be able to collect on the money owed you. Another pitfall is timing. You must file your claim for repayment within 1 year of the person's death, or else your forfeit your right to repayment.
If, however, you file your claim within the appropriate time period, and if there are enough assets in the estate to request repayment, the court will proceed through Probate and address the debts that are owed you. The court will address and examine each claim for debt, and, if the claim is valid, the court will require payment of the debt before any other distribution can be made.
Probate estates must give you notice as to the opening of the estate. When Probate is opened, and if the requisite requirements are met, then the clerk of the court will publish notice in newspapers announcing that the Decedent's estate is currently going through Probate. This action is required because, without it, your due process rights under the Constitution are in violation.
Before going through the actual process itself, we need to look at two types of Creditors who may have claims against an estate: Known creditors and Unknown creditors.
- Known Creditors
Known creditors are those easily identifiable and known individuals who may make a claim against an estate. If you are a medical provider who last serviced the Decedent and are owed money, the family will know of your whereabouts and will know that you are owed repayment from the estate. The court will send you letters directly, notifying you of the Decedent's death and that the estate is in Probate.
- Unknown Creditors
Unknown creditors are those creditors which are not known by the family of the deceased. They cannot be found through reasonable means or in a timely manner. These unknown creditors, because their right to repayment is just as valid as known creditors, must be notified through publication of notices in newspapers and other outlets so that they can make a proper claim for repayment against the Probate estate.
Timing is important in this context too. Four months after public notification is given as to the Probate estate, unknown creditors must make their claim or else they are barred. If an unknown creditor files a claim for repayment four months and one day after notice is given, then they are unable to collect against the estate. They will then be informed by the court that the claims period is expired and any claim against them will be closed as to the estate.
Steps to Reclaiming Debt
After you receive notice and filing a claim against the estate, there are a few other steps that you will need to accomplish. They are as follows:
- Confirm the Debt
Before you file your claim against the Probate estate, you must confirm that the Decedent owed you. If the Decedent did not owe you money, then it is obvious that you will not be able to claim against the estate. To determine this, you will have to gather documentation from your records to ensure and prove that the debt is legitimate. These documents can include a bill, a promissory note, a contract, or other documentation proving that there was a debtor-creditor relationship between you and the Decedent.
The Probate court will require proof of the debt owed. So, once you collect all the appropriate documentation, make sure that it is in order to file with your claim. Without these documents, your claim will likely be dismissed and you will be barred from repayment from the Probate estate. Accurate record keeping in this process is therefore absolutely key.
- Locate the Probate Court
This sounds like a relatively simple step. Locating the Probate court, one would think, is an easy endeavor. However, it may be a little more complicated than you first realize.
Probate court is a specialized part of the judicial system that deals with the estate, property, Will, and debts of someone who has passed away. Part and parcel to this is ensuring that the court has jurisdiction over the debtor's estate. Jurisdiction means the right of a court to actually hear a case before it.
Another issue is venue. The court must be the appropriate venue for hearing the claim. In Probate matters, venue is determined to be the site where the Decedent was domiciled. If, however, the Decedent left property out of state, then there may be a probate action in that other state to help distribute the asset and determine heirship.
The job of the Probate court is to ensure that the debts of the deceased are paid and that the remaining assets are correctly distributed to the beneficiaries or heirs. Once you determine where the Probate proceeding is, you should then contact the probate court to confirm that the probate proceeding is continuing and that you can still file a claim against the estate.
- Visit the Probate Court
Once you have established which court is handling the Probate of the estate, you will need to visit the court. Once there, you will present valid proof of your debt and file a claim against the estate. Most Probate courts will have online resources and forms for you to use. For instance, the St. Louis County Probate Division has a form specifically for filing a claim against the estate.
You will fill out whichever form is provided by the Probate division, or contact a Probate attorney to draft of a claim against the estate, and file it with the court. Before this can happen, however, you must know the case number. The case number can be obtained online or by contacting the clerk of the court.
Every claim against an estate must be certified by the court. This means that you will need to obtain a certified court-stamped copy of your personal records before filing the claim. Finally, it may be prudent to seek help of an experienced probate attorney to assist you in filing your claim. The Taormina Firm, as a probate law firm, is more than happy to assist any creditor seeking to reclaim from the estate of a debtor. We will walk you through the process, ensure that the paperwork has been filled out correctly, and then file the paperwork on your behalf to submit your claim.
- Letter to Personal Representative
The Personal Representative is the person responsible for settling up the estate, paying off any debts, taxes, and expenses, and, eventually, distributing assets to the beneficiaries. The Personal Representative is either appointed under a person's Will or by the court.
If it is impossible for you, as a creditor, to visit the probate court, you may be able to file a claim online or by mail. In some cases, you may request repayment for debts by writing a letter to the Personal Representative of the Probate estate. Sometimes, this action is an acceptable way to prove yourself as a creditor. When creditors make prompt claims against the estate, the Personal Representative and/or the court must perform the following duties:
- Review and examine each claim, ensuring that all necessary information is included in the claim submitted by the creditor.
- Validate the basis of the claim by going through the Decedent's records to see if they actually owe the creditor a debt.
- The Probate court may rule whether or not the claim is an allowed claim (an important piece here is determining the timing within which the claim was made).
- If there are not enough assets in the estate to cover the claim, the creditor must be notified by the Personal Representative or the court.
- With the help of an experienced estate planning and probate attorney, determinations must be made as to which creditors should be paid before others, and which debts should go unpaid. This is known as prioritization, and includes some complex areas of law which a lawyer is best equipped to know and understand.
Finding your way through the Probate process, especially as a creditor, can be challenging. You want to be able to collect on the debts that you are owed at the death of the Decedent. Even though death is an emotionally fraught time, your right to repayment does not expire at the death of an individual. Discussing your options with an experienced estate planning and probate attorney is important and useful in seeing how your rights can be expressed.
If you have a claim against an estate in Probate, feel free to contact The Taormina Firm with any questions that you may have.