Probate is a court-supervised process for determining and gathering the assets of a deceased person, known as the decedent, paying his debts, and distributing his assets to his beneficiaries and heirs. Although state law varies regarding specific procedures, notice of probate is meant to accomplish the same thing in every state; that is, notice of probate gives parties who have an interest in a decedent’s estate warning that the probate process is being initiated. As beneficiaries may not know they were included in a decedent’s will, notice gives them an opportunity to assert their rights at the very beginning of probate administration. Probate laws require certain facts be made public through publication. States vary as to what must be made public, where to publish and for how long, but every state has some type of publication requirements. Once made aware of probate through publication, beneficiaries and creditors have the opportunity to contest decisions of the personal representative or file claims against the estate.
A creditor of an estate is anyone the deceased still owed money to at the time of death, i.e. anyone entitled to collect an unpaid debt of the decedent from the proceeds of the estate. Creditors must always be given notice of the probate. Usually the notice must be published in a local newspaper. Creditors have a certain amount of time to file their claims against the estate after notice is published, usually six months. The deadline is significantly shorter, usually two months, for any creditor given notice directly.
Publication Timeline
The amount of time a notice must run in a local newspaper varies by jurisdiction and type of notice being published. Many states, require publication of any notice for three consecutive weeks in a newspaper generally circulated within the county where probate is being conducted.
Notice To Creditors Basics
Settling an estate can be complicated, especially if there are debts to be paid. A Notice to Creditors makes certain you’ve notified the estate’s potential creditors of the deceased’s passing. Use the Notice to Creditors document If you are the executor, personal representative or attorney for a deceased’s estate and are required to notify all potential creditors of their opportunity to present a claim against the estate. If you’re an executor of an estate, a Notice to Creditors helps you do your job right. It ensures that creditors are aware of their right to present a claim against the estate. As an executor, you’re required to inform the estate’s creditors that the deceased has passed. A Notice to Creditors can make certain all creditors know to present their claims against the estate. Once notified, all creditors have the chance to inform you of their claim against assets in the estate. The Notice is commonly published in the county newspaper where the deceased’s probate claim is, or would be, filed. Publication makes certain all unknown creditors have an opportunity to present their claims against the estate.
When someone dies, their debts do not die with them. A creditor retains the right to seek payment of the debt from the decedent’s estate. But the creditor may not know the decedent has passed away, and conversely, the personal representative of the estate may not be aware of all of the decedent’s creditors. For this reason, the personal representative is legally required to publish a notice to creditors in the newspaper. The notice itself must contain some basic information about the estate, including the decedent’s dates of birth and death, the county where the probate estate has been opened, and the deadline for filing any creditor claims.
The deadline is the critical piece of information. To ensure that probate estates are administered and closed in a timely manner, state law imposes strict deadlines to file creditor claims. The probate court (or registrar) will set the deadline by orders, which are “not less than 3 or more than 4 months from the date of the order.”
As a general rule, any unsecured creditor claim filed after the deadline stated in the notice is barred. The personal representative is under no obligation to pay a late claim. There are multiple exceptions to this rule, however, including claims related to funeral expenses or unpaid taxes. A creditor may also pursue an untimely claim if the personal representative “knew, or in the exercise of reasonable diligence should have known, of the existence of the potential claim,” failed to notify the creditor, and the creditor did not learn of the estate’s existence until at least 31 days before the notice period expired. The reason for this exception should be obvious so personal representatives cannot avoid valid claims by ignoring them and hoping the creditor will not find out about the estate. In fact, a good personal representative will directly notify any known creditors of the estate separate from the required publication.
How to Write an Estate Notice for a Newspaper
For the personal representative of an estate, taking the estate through probate can be a bittersweet process. The grief of losing a loved one makes the process difficult; yet settling the estate helps everyone move toward closure. The requirements for an estate notice vary from state to state. Writing an estate notice for a newspaper is a simple process that the personal representative of an estate follows to notify creditors whom the deceased owed money that they must make a claim against the estate to collect that money.
Step 1: Title the notice “Notice to Creditors,” and include the name of the deceased, the name of the court in which the estate is being probated and the probate case number.
Step 2: State in the notice that you have been appointed as personal representative for the estate and that any person or organization that has a valid claim against the estate must serve a copy of the claim on you as the personal representative. Specify that a claim must include whatever claim information is required by your state’s probate statutes. For the personal representative of an estate, taking the estate through probate can be a bittersweet process.
Step 3: State the time limit within which the creditor must present a claim to you. Time limits vary depending on the state law where the estate is being probated.
Step 4: State the date of first publication of the notice. Most jurisdictions require you to publish the notice more than onceStep 5: List your name, your title as personal representative of the estate, your mailing address and your telephone number in the notice so that creditors can serve their claim notices on you or contact you.
Step 6: Submit the notice to the newspaper, along with fees required to publish the notice.
Publishing a Probate Notice to Creditors allows you to reduce the Statute of Limitations from 24 months after date of death to 4 months after the date of first publication for any claim that would not have been expected to have been found in a diligent review of Decedent’s correspondence and financial records. See: Statute of Limitations. So long as you lawfully publish a Probate Notice to Creditors, giving actual notice (within the first 3 months after first publication) allows you to reduce the Statute of Limitations from 24 months after date of death to 4 months after the date of first publication for another, important class of creditors — those with claims that would have been expected to have been found and were actually found in a diligent review of Decedent’s correspondence and financial records.
Steps To Properly Complete A Probate Notice To Creditors Form
During the probate administration process, the personal representative of the estate must provide notice of the estate’s administration to known creditors. This form gives notice to creditors they have a certain amount of time to file a Notice of Claim against the estate. If creditors fail to respond properly within the allowed time period, they may forfeit their ability to pursue a claim against the estate.
the Notice to Creditors form contains the following requirements ;
The following is an overview of how to complete Notice to Creditors form:
1. Clearly state the name of the estate.
2. Enter the personal representative’s name, telephone number, and address.
3. Indicate in which District Court in Utah the probate proceedings initiated.
4. Include the street address and mailing address for the specific court, as well as the case number for the estate administration.
5. Indicate the issue date of the letters authorizing the personal representative to act on behalf of the estate.
6. Indicate the date that creditors received notice via email or hand-delivery
7. If applicable, complete the “Proof of Service by Mail” section. This requires the person mailing the Notice to Creditors to include their address, an indication notice was deposited in a sealed envelope and placed for collection, and the date and place of deposit.
8. List the name and address of each person who received the Notice by mail. If necessary, attach a list of any names that do not fit within the form.
9. The form must also be signed and dated under the pains and penalty of perjury.
Creditor Notification Requirements for Executors
Creditor notification is a mandatory part of probate in every state, but the process varies in each jurisdiction. In North Carolina, executors (or personal representatives) must follow several statutes in regards to the timing, distribution and placement, and transmission of notices to creditors.
Executors across the state must complete the following tasks as part of their fiduciary duties:
• Notice to creditors must be sent directly to known creditors within 75 days from when the executor was granted letters (the legal authority to serve as executor). The notice can be furnished in-person or by first-class mail. If the estate involves assets in other states, the executor must comply with the probate and creditor notification requirements of the other jurisdictions. This generally requires filing a probate application in each state and appointing another party who is a resident in the respective jurisdiction as an agent to act on the executor’s behalf.
• To provide an opportunity for unknown creditors to file a claim, a notice to creditors must be published once weekly for four consecutive weeks. The executor must place notice to creditors in a newspaper published within the county where the estate is being administered.
• If a newspaper is not published within the county where administration occurs, the executor must print the notice in a newspaper with general circulation in the county and post the creditor notice at the county courthouse. Alternatively, the notice can be posted at the courthouse and in four public spaces in the county.
• Notices must include how and where to submit claims against the estate, as well as the final filing date for such action. (North Carolina law provides that creditors have 90 days to file from the first date the notice appears.)
• As evidential support, the executor must gather copies of the notices, an affidavit from the newspaper, and in some cases an affidavit from the executor that they completed the actions above. These documents must be filed with the Clerk of Superior Court.
Conclusion
Surviving family members may be unaware of the possibility that a creditor could be granted letters of administration in some circumstances. A creditor could serve as executor if the decedent did not have a will, did not appoint an executor in their will, or no named executor wishes to serve. The creditor would need to apply to the court for letters of administration. The court grants priority to other parties before considering a creditor to serve as executor. Highest priority is given to the decedent’s surviving spouse (if one is present), beneficiaries named in the will, legal heirs of the estate if the decedent died intestate (without a will), and all next of kin. These parties are all considered in this order before a court would consider granting a creditor letters of administration.
When you need to probate an estate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan , Utah
84088 United States
Telephone: (801) 676-5506
