You are collecting debt in Kentucky and discover that the defendant has passed away. What can you do to collect the debt from the decedent’s estate, what is the time period to get that done, and what do you do if the estate disallows your claim? These three questions are answered below.
How do you collect from the decedent’s estate? The way you present the claim in the decedent’s estate is lain out in KRS 396.015:
File a written statement of the claim indicating the basis (e.g., judgment, credit card, automobile deficiency balance, etc.). You should attach all documents that support the claim.
Deliver or mail the claim to the personal representative or file the claim with the clerk of the court (in Kentucky, the Probate Court is a division of the District Courts).
NOTE: I suggest doing both, that is, filing the claim in the probate action AND sending a copy of the claim to the personal representative.
- By filing the claim, you should get an electronic notification via CourtNet of that filing so you establish the date it was done.
- When sending the claim to the personal representative, think about doing this via certified mail, again to establish when the claim is received.
- The claim is deemed presented on the first of these actions to occur. That is why I suggest certified mail. KRS 396.015(1).
- If the estate is represented by an attorney, send a copy to them as well. Note that service on the attorney alone is not automatically deemed service on the estate.
- Lay all this out in the certificate of service of the claim filed in the probate court.
When does your claim to the estate have to be presented? This is governed by KRS 396.011 and presumes your cause of action arose prior to the decedent’s death. The claim must be filed within 6 months after the appointment of a personal representative. If no personal representative is appointed, then the claim must be filed within two years of the decedent’s death. If you fail to file the claim timely, you will not receive a distribution from the decedent’s estate and cannot later attempt to collect the claim from the estate, the personal representative, nor the heirs/devisees.
If you have security, such as a judgment lien that is not paid, it will survive the closing of the estate. The time limitation found in KRS 396.011 shall not affect or prevent “to the extent of the security only, any proceeding to enforce any mortgage, pledge, lien or other security interest securing an obligation of the decedent or upon property of the estate…”. The Kentucky Court of Appeals has applied this to a judgment lien that attached to real property of the decedent prior to his death even where the creditor failed timely to file a claim in the estate. See, Evans v. Primus Automotive Financial Services, 2006 WL 1195643 (Ky. Ct. App. 2006) (unpublished opinion).
What if you file a claim and it is disallowed by the personal representative? A personal representative, including their attorney, can mail notice to a claimant creditor that the claim has been disallowed. That must be done within 60 days after the presentation of the claim. You need to bear in mind that KRS 396.011 states all claims must be filed within 6 months after the personal representative has been appointed. In effect, this could give the estate six months and 60 days to disallow a claim.
If a timely disallowance is not filed, the claim is deemed allowed.
The notice of the disallowance of a claim must contain a warning that unless the claimant files an action against the personal representative within 60 days of the mailing of notice of disallowance, that claim will be disallowed permanently. Failure to do so does not “allow” the claim, but the 60-day deadline to file suit against the personal representative/estate does not begin. While claims are filed in Probate/District Court, proceedings challenging the disallowance of a claim are filed in Circuit Court, per KRS 24A.120(2)
The suit then proceeds and the parties present evidence regarding the sufficiency and amount of the claim. Note that some personal representatives may have a practice of seeking to disallow most claims, thinking it may not be worth the time and money for the creditor/claimant to file suit in Circuit Court.