If there is ever any property discovered after a probate is closed and the personal representative is discharged from their duty of office then you will have to reopen the probate administration in order for the personal representative to have the authority to continue to conclude the probate. The process to do this would be to first file a Application to Reopen Administration. This usually happens when property or probate matters are overlooked and later discovered. Sometimes it can be the need to fine income tax returns the following year. Usually the personal representative is discharged when the final decree is entered. It is usually possible to not discharge the personal representative. That may be the best thing to do in most probates, since there usually is always something extra that was missed.
Brent D. Coldiron has over 42 years experience in probate, wills and revocable trust. He knows what to do!
The application will state that the personal representative is requesting the court to reopen the case. It will also state what property has been discovered since the probate was closed. A copy of the filed final decree of the estate will need to be attached to the Application. The next step will be to have the judge sign an order reopening the probate and reappointing the personal representative. The judge should then be presented with new Letters of Administration. This will show that the personal representative is appointed over the estate again. The estate will continue to use the same employer identification number as it was assigned by the Internal Revenue Service.
In the case of Gates v. Baum; 1983 OK CIV APP 53, 673 P.2d 519 it states the following: In November 16, 1967, Virginia Gates submitted herself to extensive gynecological surgery – a removal of her uterus, tubes and ovaries – at the hands of Delbert G. Smith, M.D. Gates’ postoperative course consisted of kidney trouble accompanied by high blood pressure. These complaints were brought to the attention of Smith but he is said to have made no effort to determine the cause.
¶4 Dr. Smith died May 13, 1975. His estate was probated and closed several months later.
¶5 The persistence of Gates’ symptoms inspired her to visit Scott-White Clinic in Temple, Texas, in October 1978. There physicians discovered and removed a hydronephrotic (blocked and degenerated) kidney caused by the improper tying off of the ureter (tube from kidney to bladder) during the 1967 surgery. Removal of the kidney brought an end to the discomforting post-Smith operative symptoms.
¶6 Upon learning these facts Gates filed a motion to reopen Smith’s estate and to appoint a special administrator.1 The motion was granted and this action was filed. Later, attorneys who appeared on behalf of the estate asked the court to vacate the appointment of the special administrator and quash the summons served on him. The trial court sustained the motion and, of course, Gates appeals.
¶7 his is a matter of first impression in this state. The controversy pits the recovery rights of a deceased tortfeasor’s victim against the interests of asset distributees in the legal feasibility of according finality to an order closing an estate. Apparently few jurisdictions have considered the question. In this state the rights, duties and powers relating to the probating and distribution of decedents’ estates are governed largely by statute.2
¶8 Statutory authority is granted for opening a closed estate “if it becomes necessary or proper for any cause.”3 So, the ultimate question here is whether it is proper to reopen for the prosecution of plaintiff’s tort claim.
¶9 The law extends priority protection to decedent’s debtors with respect to estate assets. Both real and personal property are “chargeable . . . with the payment of all the decedent’s debts, as provided in [Title 12 of the Oklahoma Statutes].”4 Moreover, “[t]hose to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the chapter on civil procedure, or the statutes in such case made and provided.”5
¶10 Though the 30 day claim presentation limitation of 58 O.S. 1981 §§ 243 and 333 is inapplicable, because those statutes refer to claims arising from contract,6 defendant says that the three month limitation period in 58 O.S. 1981 § 67 , does apply. That section prescribes that if no person contests the admission of a will to probate within three months after its admission, the probate of the will becomes conclusive.
¶11 The flaw in this contention is that plaintiff is not contesting the probate of Smith’s will. It is a matter of no concern to plaintiff whether the will was probated or not, nor to whom Smith left his estate. If anything, plaintiff wants enforced the very first direction Smith gave in his will – “that all my debts be paid.”
¶12 And for that matter, it was long ago held that an ex contractu creditor or claimant is entitled to reopen a closed estate for the establishment and payment of his claim if he can show a legal excuse for having failed to attempt to secure the desired relief during the original administration proceedings.7 We can see no legitimate reason why a tort claimant should have fewer rights.
¶13 Certainly here plaintiff has shown one of the best reasons in the world why she did not sue earlier – she did not know that Smith had injured her. The allegation in fact is that although kidney discomfort and elevated blood pressure were classic symptoms of a tied-off ureter – a common accidental injury in such gynecological surgery, incidentally – Smith declined to examine her or disclose to her the probable reason for her postoperative distress during several follow up visits to his office. As a matter of fact these allegations suggest an intentional malfeasance that eventuated in plaintiff’s loss of a kidney – a kidney that could have been saved by early diagnosis and corrective treatment.
¶14 The fact that there may exist some question concerning the collectability of a judgment facing plaintiff somewhere down the road affords no excuse for judicially obstructing her pursuit of a judgment at this juncture by refusing to reopen the estate proceedings.
¶15 The order appealed is vacated and the cause remanded for further proceedings.
BRENT D. COLDIRON IS A LONG TIME MEMBER OF THE NATIONAL ACADEMY OF ELDER LAW ATTORNEYS. BRENT UNDERSTANDS PROBATE. HE KNOWS WHAT TO DO!
This is a simple process but, needs to be done if you discover any other property in the name of deceased. Most financial institutions won’t help you with the property if you cannot show your authority to act for the decedent. That would be presenting your letters. Letters can be testamentary or of Administration. Letters Testamentary or Letters of Administration grant the authority to act for the decedent. Once a personal representative is reappointed over the estate it makes it possible to be able to get the property owned in a decedent’s name or have a check issued into the name of the estate if it has to do with money.
If you need an attorney who knows how to reopen an administration or represent you during a probate contact Brent D. Coldiron, attorney at law, 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 41 years experience handling a variety of legal matters, including probates, wills, trusts, business formation, elder law, Medicaid qualification for nursing home care, corporations, limited liability companies, and guardianships. Give Brent a call, he knows what to do!