Creditor filed proof of claim 2 years after death.

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  • #3469

    lalawchick
    Participant

    If the POC is not filed within one year of decedent’s death or within one year of the opening of the succession, what limitations of evidence are put against the creditor when he does file his claim?

  • #3471

    Lex
    Keymaster

    First of all, is this an open succession?

    If it is closed, was there a final tableau of distribution and notice to creditors in the newspaper?

    There are many, many variables here. We have proofs of claim filed all the time where a succession is closed but we waived an administration which means that the usual short deadline for creditors does not exist.

    In these cases we often do nothing. A great number of creditor claims are filed after a succession is closed. The proper way for a creditor to get their claim filed would be to re-open the succession to get their claim heard. I have not had a creditor do that to date. Most of these claims are credit card debt averaging around $3,000 and apparently that is not worth the legal fees to get a succession re-opened.

    Again, there are many variables from case to case.

  • #3475

    lalawchick
    Participant

    The succession is open. Legatees were not speaking. Couldn’t get any cooperation. No debts of decedent. Assets sold – house only and proceeds distributed according to the will. This debt is a mistake on the bank’s part. Decedent’s spouse fought with bank until his death. Couple never owed a dime to anyone.

  • #3476

    lalawchick
    Participant

    Claim is ~ 2k.

  • #3477

    lalawchick
    Participant

    I have to think they’re going to pursue it b/c they just filed it a couple of weeks ago. Why pay to file if you’re not going after it? One of their filed docs says the debt was “written off”. That’s what the spouse was finally able to accomplish before his death. Is it possible they’re hoping the executor will just pay it?

  • #3479

    Lex
    Keymaster

    in many cases a bank will turn these over to a collection agency, or collection attorney -same difference.

    if you have this under administration, I would list the debt as contested and give the reasons why you do not intend to pay this creditor. It puts the ball in their court. Did they file an affidavit with the POC?

  • #3483

    Lex
    Keymaster

    Let me add that creditors often file a proof of claim just to interrupt prescription -even if they do not immediately plan to pursue the case. It can just be a safeguard for the creditor to keep their options open.

    Art. 3245. Submission of formal proof of claim to suspend prescription
    A. A creditor may suspend the running of prescription against his claim for up to ten years:
    (1) By delivering personally or by certified or registered mail to the succession representative, or his attorney of record, a formal written proof of the claim.
    (2) By filing a formal written proof of the claim in the record of the succession proceeding, if the succession has been opened and no person has been appointed or confirmed as succession representative and no judgment of possession has been signed.

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