A recent case, In re: Estate of Lois Whitten, illustrated a tricky area of the law for creditors’ claims against an estate.

When you probate a Will, the Court publishes a Notice to Creditors. Creditors have 4 months from the first publication of Notice to file their claims against the Estate. In order to benefit from the 4 month statute of limitations, the Executor must search the Decedent’s records and send a copy of the Notice to any likely creditors. The 4 month deadline also applies to any creditors that the Executor should not have expected after searching the Decedent’s records. If the Executor fails to send a copy of the Notice to a creditor whom the Executor should have known about, then the creditor has 1 year from the date of death to file a claim.

Instead of sending the Notice to Creditors in Whitten, the Executor sent a letter to the creditor with a check. The letter stated “This pays her bill in full. If not, please do not cash the check but return it to me.” The creditor rejected the check and returned it to the Executor. Six months after the Notice to Creditors had been published, the creditor then filed a claim against the estate for a larger amount. Had the Executor included the Notice to Creditors with the letter, this claim would have been disallowed. However, the court allowed the claim because the Executor did not send the required Notice.

Lessons from this case:

1. If you are a creditor of someone who dies, file your claim promptly (especially if your claim is such that the Executor may not discover it).

2. If you are an Executor, send all potential creditors a copy of the Notice to Creditors.