Claims Process
Options for creditors in independent administrations.
By Keith Branyon
Most articles written about “probate” and “creditors” are designed to
advise the executor.1 The purpose of this article is to guide
a creditor who is faced with the death of its debtor.
The claims process is a difficult and confusing part of probate
practice. Part of the minefield for a creditor is a result of how the
Estates Code2 is written and organized. There is a detailed
claims process for dependent administrations, but many of those statutes
do not apply to an executor in an independent administration. Therefore,
a creditor dealing with an independent executor must follow a different
process than if the administration were dependent.
Most code subheadings are generic and appear to cover claims in both
independent and dependent administrations. There are few sections that
apply specifically to independent administrations. In general, Subtitle
I of the code3 deals with independent administration. Chapter
403 of Subtitle I deals with exemptions, allowances, and claims.
However, the code also specifically states that, except as otherwise
provided, the procedural provisions governing creditor claims in
supervised administrations do not apply to independent
administrations.4
Defining
“Claims”
“Claims” are defined to include “(1) liabilities of a decedent that
survive the decedent’s death, including taxes, regardless of whether the
liabilities arise in contract or tort or otherwise; (2) funeral
expenses; (3) the expense of a tombstone; (4) expenses of
administration; (5) estate and inheritance taxes; and (6) debts due such
estates.”5
As this definition shows, a claim is a debt that the decedent owed
before death or which accrued after death. Both types of debts are
handled the same way.
Every part of the definition of “claims” describes a claim for money.
The extension “for money” is added to the term “claim” to make a single
phrase in numerous statutes.6 There is no guidance in the
code if the “claim” is not one that involves money.
Initiating a Claim
How a claim must be pursued depends on whether the claim is liquidated
or unliquidated, secured or unsecured, or for money or something else.
Even if a creditor is in the midst of a collection action, or has
perhaps obtained a judgment prior to the death of the decedent, the
creditor must “start over” pursuing the claim after the decedent
dies.7
Following the death of a debtor, collection efforts cannot commence
until a personal representative is appointed for the estate. The initial
focus of the creditor should be to monitor the filings in courts that
handle probate matters in the county of death. If the decedent’s family
does not start the probate proceeding in a timely fashion, the creditor
can also start the process.
An application to probate a will, or to appoint an administrator when
there is no will, may be filed by certain persons, including an
“interested person.”8 A creditor is an “interested
person.”9
If the family fails or refuses to commence a probate action in a
timely manner, a creditor can be the applicant in a request to create a
temporary administration. The applicable statute dealing with temporary
administrations uses the term “person”10 when stating who can
commence such a proceeding. The term “person” is defined differently
than the term “interested person.”11 However, the Texas
Supreme Court has made it clear that a creditor can seek a temporary
administration in order to have a representative appointed to accept
service of process.12
Once the administrator13 is appointed, the creditor can start
efforts to collect the debt.
Sending
Notices After Appointment of Executor
Once an executor is appointed, two notices are required to be sent,
and a third notice may be sent. The steps the creditor must take depend
on which, if any, of the notices have been published/sent/received.
1. A general notice to creditors must be published within one month
of the issuance of letters testamentary. The notice must be in a
newspaper “of general circulation in the county in which the letters
were issued.”14
2. If there were secured debts at the date of death, within two months
after receiving letters, the executor must send notice by certified or
registered mail, return-receipt requested, to each secured
creditor.15
3. If there are unsecured creditors, the
executor may send a separate notice to them (“permissive
notice”).16
Filing the Claim
and/or Suit
With the exception of those receiving permissive notice, a creditor
dealing with an independent administration is not required to file a
claim. Instead, the creditor may simply file suit against the executor,
and such a suit will toll the statute of limitations.17 If a
suit is filed, the executor is allowed to ignore the suit until six
months after letters were granted.18
A claim to be filed by a creditor must meet certain requirements
specified in the code, exactly like the document that must be filed by a
creditor in a dependent administration.19 A claim that does
not comply is not a proper claim, does not toll any applicable statute
of limitations, and requires no further action by the executor.
If an unsecured creditor is responding to a newspaper notice, a claim is
not required to be filed and suit can be filed against the executor or
the heirs/beneficiaries if the estate has already been
distributed.20 Since there is some uncertainty as to what
limitations periods may apply after the death of a debtor,21
the only safe harbor for a creditor is to file suit and thus eliminate
any concern about limitations.22
Selecting Lien Classification Preference
Secured creditors must be careful to notify the administrator of any
preference regarding the classification of their lien. There are two
choices: “preferred debt and lien” and “matured secured
claim.”23 A secured creditor who elects “matured secured”
continues to have its lien, but the creditor’s rights are subordinated
to payment from the property to creditors with higher
priority.24
The secured creditor who elects “preferred debt and lien” will
ultimately receive the collateral to which the lien is attached to
either sell or retain, but the creditor cannot seek any additional
recovery of cash or other property from the estate if the sale of the
collateral yields less than the amount owed on the
debt.25
The default classification is “preferred debt and lien.” Within the
latter of six months from the date on which letters were issued or four
months after receiving written notice from the executor, the creditor
must notify the administrator if the claim is to be classified as a
“matured secured” claim.26
If the collateral is real estate, and if the creditor elects “matured
secured” claim, the creditor must both file a claim and record a notice
of the creditor’s claim and of the “matured secured” election in the
deed records of the county where the land is located.27 If
the secured creditor fails to get a “matured secured” election to the
administrator within the required time, or if the secured creditor fails
to make all of the proper filings and recordings, the claim will default
to “preferred debt and lien.”28
While the code provides clear guidance as to what must be included in a
claim,29 there is no guidance as to what must be recorded in
the deed records by a creditor with a security interest in real estate
which is electing “matured secured” status.30
Delivering the Notice to the
Executor
As stated above, an executor is required to send notices to secured
creditors31 and may send notices to unsecured
creditors.32 After the receipt of such notices, the creditor
must send a notice back to the executor. The creditor must be extremely
careful to deliver its notice in one of the three ways allowed by the
code.33 If the creditor fails to strictly comply, the
implication is that the notice is invalid and the claim is no longer a
debt against the estate.34
Responding to Creditor Claims
Because an executor acts without court supervision, the creditor who
files a valid claim can expect no response at all. While the executor
must classify all claims,35 the executor is not required to
communicate the decision to the creditor.
The purpose of the classification task is to make certain that the
administrator pays claims in the order of priority if there are
insufficient assets to pay all claims in full. If the estate’s assets
are insufficient to pay all of the classified debts, then the
administrator pays the claims in the order of priority of the
classification.36
Pursuing Other
Remedies
A secured creditor that has elected “preferred debt and lien” status
can exercise any judicial or nonjudicial collection rights, including
foreclosure and execution, but a nonjudicial foreclosure sale cannot be
conducted until at least six months after letters are
granted.37
On the other hand, a secured creditor that has selected “matured
secured” status is not entitled to exercise any remedies in a manner
that prevents the payment of the higher priority claims and
allowances.38 A “matured secured” creditor is also prohibited
from exercising “any contractual collection rights, including the power
to foreclose, without either the prior written approval” of the executor
or the court.39
Conclusion
Representing creditors in probate actions can be perilous. Deciding
whether and how to pursue a claim requires the creditor to follow
closely the provisions of the Estates Code. Failure to do so could
result in the loss of the claim and the underlying
debt.TBJ
KEITH BRANYON
is a partner in the Fort Worth office of Jackson Walker. He is the
author of Texas Probate Forms & Procedures. He is certified
in tax law and in estate planning and probate law by the Texas Board of
Legal Specialization and is a certified public accountant.