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Estate Planning Blog

Monday, October 10, 2016

How do I file a claim in a probate estate?

If you are a creditor of a decedent who has died, you will need to know how to file a claim against the decedent’s estate in order to protect yourself and preserve the amount due to you.  Below you will find general guidance about the process for filing a claim in a probate matter pending in Missouri.

Generally, claims must be filed within the earlier of six (6) months of the time that notice of the granting of letters testamentary or letters of administration was published or one (1) year after the decedent’s date of death.  R.S.Mo. Section 473.360.1 provides:  

"Except as provided in section 473.370, all claims against the estate of a deceased person, other than costs and expenses of administration, exempt property, family allowance, homestead allowance, claims of the United States and claims of any taxing authority within the United States, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or of administration or, if notice was actually mailed to, or served upon, such creditor, within two months after the date such notice was mailed, or served, whichever later occurs, or which are not paid by the personal representative, within six months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent. No contingent claim based on any warranty made in connection with the conveyance of real estate is barred under this section. This six-month period does not extend any other applicable limitation periods." (emphasis added)

In those cases where the personal representative mailed notice to (or served notice upon) the creditor, the creditor only has two months to file a claim (or until the one-year anniversary of the decedent’s death if earlier).  

A valid claim must be in writing, properly filed in the probate matter and sufficiently describe the basis for the claim.  R.S.Mo. Section 473.380 explains the requirements:  “No claim other than for costs and expenses of administration shall constitute a claim against an estate unless it is in writing, stating the nature and amount thereof, if ascertainable, and is signed by the claimant, or by some person for him who has knowledge of the facts, stating that to the best of his knowledge and belief he has given credit to the estate for all payments and offsets to which it is entitled and that the balance claimed is justly due.”  (emphasis added)  

Additionally, if the claim is based on a contract or other writing, the claimant should file a copy of the contract with the claim.  Typically claim forms may be obtained by the probate court where the matter is pending.  

In those situations where multiple claims exist, or where the decedent’s assets are not sufficient to pay all debts, debts are paid in the following order (per R.S.Mo. Section 473.397):

1.   Costs;

2.   Expenses of administration;

3.   Exempt property, family and homestead allowances;

4.   Funeral expenses;

5.   Debts and taxes due the United States of America;

6.   Expenses of the last sickness, wages of servants, claims for medicine and medical attendance during the last sickness, and the reasonable cost of a tombstone;

7.   Debts and taxes due the state of Missouri, any county, or any political subdivision of the state of Missouri;

8.   Judgments rendered against the decedent in his lifetime and judgments rendered upon attachments levied upon property of decedent during his lifetime;

9.   All other claims not otherwise barred.

Claims are satisfied in the order above, and if the assets are insufficient to satisfy an entire category, those assets are typically allocated pro rata to all claims in that category. 

In some cases, family members will wait to open a probate estate until the end of the claim period, either because they are not familiar with the rules or because they are hoping to limit the ability of creditors to come forward.  In cases where the debt is significant, creditors hoping to protect their interests should consult with a probate attorney who can advise them about whether filing a Petition to Compel Probate Administration is appropriate.




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