By Sharon Frankenberg,
Attorney at Law
What happens when someone who owes you money or has property that belongs to you passes away? If you have received a notice to creditors in the mail or read a notice to creditors in the newspaper which references the deceased person, this is somewhat good news for you as a creditor. It means that someone has gone to court and a probate case has been opened to administer the estate of the person who has passed away. The person responsible for doing this is known as the executor in cases where the deceased had a will. In cases where the deceased had no will, the responsible person is known as the administrator of the estate. Generally speaking, executors and administrators may be referred to as personal representatives in situations where their duties coincide.
After the probate case has been opened and the filing fee has been paid, the clerk prepares a Notice to Creditors. The Notice to Creditors will be advertised in a local newspaper for two consecutive weeks. The personal representative must mail notice to all creditors of the estate as well. This gives creditors the opportunity to file a claim against the estate. In some counties, the probate court has claim forms available for your use. In the other counties creditors must hire an attorney to prepare the necessary documents. If the claim is based upon a written instrument such as a promissory note or contract, a photocopy should be attached. If the claim is based upon a judgment, a certified copy of the judgment should be attached. If the claim is based upon an open account, an itemized statement of the account must be filed. The claim must contain an affidavit from the creditor verifying under oath that the amount of the claim is correct, credit having been given for all payments made and that no security for the claim has been received except for what is noted in the claim. The claim form and copies must be filed in triplicate. There is a small fee to file each claim with the clerk. Creditors must file their claims with the clerk within the earlier of four (4) months from the date of the first publication of the notice to creditors or twelve (12) months of the decedent’s death. If you find out that someone who owes you money or property passes away, you should contact legal counsel right away to make sure that it is not too late to take action to try to recover what is owed to you. Late filed claims will generally not be allowed. Exceptions include special creditors like the Bureau of TennCare which is not limited to one year from date of death.
Obviously, this article does not cover every issue which might arise. You should always contact an attorney to get advice and assistance with your unique situation. Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. She is a sole practitioner who handles probate, foreclosures, landlord-tenant, collections and general civil matters. She represents Social Security disability claimants and represents creditors in bankruptcy proceedings. Her office is in Knoxville and she may be reached at (865)539-2100.