HomeProbateIF YOU ARE DEALING WITH A NOTICE TO CREDITORS, AND CREDITOR CLAIMS, YOU ARE IN PROBATE!

Brent D. Coldiron is an experienced probate attorney. Here is some general rules about

    probate

. It is a complicated procedure. You generally need and will be benefited by using an experienced probate attorney.

1) In General:
• A claim in a probate is to determine, pay, and settle all debts against the decedent and the probate estate.
• Both the personal representative and the creditor claimant must strictly comply with the statutory probate procedures.
• A creditor who fails to present their claim or to otherwise follow the statutory procedures for proving their claim, will have such claim non-suited and barred from judicial enforcement. The creditor must first receive notice.

2) Notice to Creditors:
• Within two months after the issuance of the personal representative’s letters of administration, they must file notice to creditors of the deceased stating that claims against the deceased will be forever barred unless presented to the personal representative as specified in the notice.
• If the personal representative fails to give this notice to creditors within the time allowed, it could result in the probate court revoking the letters of appointment.
• The notice to creditors needs to be published in the county in which the probate is filed, once each week for two consecutive weeks.
• The creditors will have 2 months to file their claim. If they do not the claim will be forever barred.
• The notice is to be given by mail to all known creditors of the deceased at their last known addresses within 10 days following the date said notice is filed with the district court clerk.

3) Claims Required to Be Filed
• All creditor claims arising upon contracts, whether the same be due, not due or contingent, must be presented on or before the presentment date as provided in the notice to creditors, and any claim not so presented is barred forever.
• If a claimant is doubtful as to the nature of their claim, they should file it before the presentment date and not run the risk of a later judicial determination that their claim was one requiring filing in the probate proceedings.

4) Contracts
• All arising claims upon contracts, whether due, not due, or contingent, must be presented to the personal representative within the time limited in the notice to creditors and a failure to do so will cause the claim to be forever barred.
• A claim must also be filed for contracts implied in law
• A antenuptial agreement against the decedent’s estate requires a claim to be filed within the time required for filing claims.

5) Torts
• A claim arising in tort need not be presented to the executor or administrator before suing.
• Fraud in the inducement to enter into a contract is a tort claim

6) Mortgages on Real Estate and Personal Property
• A mortgagee has the option of filing or not filing a creditor’s claim in the estate of the mortgagor.
• If a mortgagee does not file a creditor’s claim, then such mortgagee is restricted to enforcing the mortgage lien only against the mortgaged property. This is called a judgment in rem.

7) State Claims
• Claims of the State of Oklahoma arising under contract must be timely presented or be barred.

8) Last Illness and Funeral Expenses
• Funeral expenses are of first priority under the payment statute.
• A funeral expense is not a debt existing at the date of the decedent’s death, and a creditor’s claim is not required.
• The expenses of last illness are claims that must be filed, and will be barred if not filed.
• There must be a connection between the expenses incurred and the last illness of the deceased.

9) Judgment Creditors and Actions Pending
• A judgment against the decedent for recovery of money must be presented as a claim to the personal representative, like any other claim.
• If the judgment is for the recovery of real or personal property, or the enforcement of a lien thereon, the proceeding may continue without the filing of a claim. This is because the judgement is not for the recovery of money from the decedent’s estate, but the recovery is confined to property owned by the probate decedent.

10) Form and Proof of Claim
• The statute does not require any particular form for claim.
• It does require the claim be signed by the claimant or the claimant’s authorized
representative, and shall state the exact amount claimed, the nature and source of the claim with reasonable particularity.
• The personal representative may require vouchers or other evidence to be produced in support of the claim.
• A claimant may amend the claim, withdraw and substitute and claim at any time before the presentment date.

11) Presentation of Claims
• A claim against a decedents estate can be established only by being first presented to the attorney for the personal representative, and then being presented to and approved by the court, or by a judgment thereon in an action against the personal representative in a proper court in the event the claim is not allowed or approved when presented.
• A personal representative cannot act upon his own claim against the estate, but must present the claim to the probate court.
• If a probate Judge has a claim against the decedent’s estate, the personal representative may allow or reject the claim.
• When a claim has been barred by the general statute of limitations which expired before the decedent’s death, it is totally unenforceable against the estate.

12) Allowance and Rejection of Claims
• When a claim is presented to the personal representative, they must endorse thereon there allowance or rejection, with the date thereof, within 30 days after the claim has been presented.
• If the personal representative fails or refuses to act upon the claim within said 30 days, it is equivalent to a rejection of the claim on the 30th day.
• If the personal representative allows the claim, it must be presented with the date of such presentment indicated on the claim, to the judge for his approval.
• The judge must endorse in their manner for their allowance or rejection.
• If the personal representative rejects a claim within said 30 days, in whole or in part, the personal representative must mail a notice of such rejection to the creditor by regular first-class mail to the creditors last known address not later than 5 days following the date of such partial or total rejection.

13) Priority and Payment of Claims
• It’s not indicated, the expenses of the probate administration, attorney fees of the personal representative, and the family allowance must be paid or provided for before any other debts are paid.
• Funeral expenses would be paid next
• The next priority is the taxes to the United States and the state, county or city.
• Liens upon their property, and mortgages in the order of their date
• Lastly would be all other demands against the estate

14) Non-probate Assets Free of Creditor Claims
• Non-probate assets are those assets in which the decedent had an interest, but title to which passed by contract or by operation of law upon the death of the decedent. These might be joint tenancy ownership with right of survivorship, living trust assets, transfer on death property, payable on death beneficial designations, all of which will avoid probate.

15) Liability of Personal Representative
• If the personal representative of an insolvent estate pays claims otherwise that in the statutory order of priority, or pays debts where no creditor’s claim has been filed, they will incur personal liability to those creditors who suffer by their acts.
• It is not adviseable for a personal representative to attempt a proration in an estate that cannot pay all debts in full, without an order of Court.
• A personal representative may also be liable to a creditor where the personal representative has failed to give notice to creditors as required in the statutory notice to creditors

16) Confirmation of Notice to Creditors on Final Decree
• At the final account hearing the probate Judge must conduct an inquiry to judically determine whether or not the personal representative has complied.
• A final decree that fails to contain this finding shall be voidable.

This has been a summary of the general rules. Exceptions are often carved out by case law. Except as a summary of the general rules, do not rely upon this if you are in need of a probate. You should instead seek the advice of an experienced probate attorney, such as Brent D. Coldiron. Check out Brent Coldiron’s Website.Office Photos for web site 031

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About Brent Coldiron

Brent D. Coldiron is an attorney with offices at 1800 East Memorial Road, Oklahoma City and 2801 Parklawn Drive, Midwest City. He has over 39 years of experience. He practices in the area of probate, wills, trusts, guardianship, Medicaid Planning, and elder law. Brent is also the presiding Municipal Judge for the City of Midwest City.


Comments

IF YOU ARE DEALING WITH A NOTICE TO CREDITORS, AND CREDITOR CLAIMS, YOU ARE IN PROBATE! — 3 Comments

  1. The link below has some probate forms for Nebraska coturs. I would recommend calling or emailing the clerk of the court in which the person who died had previously resided or owned property.

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