Probates and Trust Proceedings

• Author: David J. Cook
• Pages: 131-147

Probates and Trust

Proceedings

The Short Story

Synopsis

Probate and trust proceedings administer the decedent’s or trustor’s prop-

erty pursuant a detailed statutory process. The proceedings provide for

payment for timely filed creditors’ claims if assets are available. Probate pro-

vides for the sale of real and personal property, impounding the money and

paying priority claims, administrative claims, “end of life” medical expenses,

funeral and related expenses, taxes, and other like charges; the widow’s

exemption; and, finally, the creditor’s timely filed claims. The purpose of the

probate court, generally, is to provide a forum that would ensure that the

testator’s or trustor’s instructions are fulfilled.

Legal Basis

Every state has enacted a detailed and very comprehensive probate code,

which includes provisions for administration of trusts. Probate law is gener-

ally uniform as most probate codes follow the Uniform Probate Code. Trust

law is also uniform and very old. The rights of heirs (the core of probate) is

a very old concept and dates back to King Henry II (1133–1189). A judge in

King Henry II’s court might need a little refresher but could hold court today

without too much effort. Deeds executed under court order are in every

property’s chain of title, somewhere in time. At one time or another all real

property passes through the probate court.

Perhaps even more than traffic court, probate court touches everyone’s

life given that the estates of many folks are resolved in probate court. From

the viewpoint of the law profession, estates and trusts are a unique legal

specialty. Law libraries (paper and digital) warehouse endless shelves of

treatises, practices guides, and other authorities.

When Do I File a Claim?

Each state offers specific deadlines to file a proof of claim with the court.

Assuming timely notice, the creditor usually has 60 days to file the proof of

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claim. Absent notice, the time to file is 120 days after the letters of adminis-

tration were issued. Check with local state law.

These are dates very certain. Some jurisdictions might allow for a late

filed claim, but this will take a full court press and a very good excuse.

What Does It Mean to File a Claim?

Use personal delivery, overnight services, or USPS Express. Send the origi-

nal and four copies or more. Enclose a fully self addressed envelope. Some

courts are electronic, which enables the creditor to confirm timely filing.

Confirm the court address. This might sound simple, but sometimes the

probate court is in a different building or has its own clerk. Big city courts

sometimes occupy several buildings (i.e., civil court, criminal court, probate

court, traffic court, family law court, etc.).

How Do I Locate the Filing?

This is easy to moderately challenging. Absent actual notice, the court dock-

ets are online in most courts and can be searched by the person’s name. The

fact that the person is deceased is generally available online or through a

search via Westlaw, Lexis Nexis, or other services.

What Do I File?

Probate claims are pre-printed forms available online. They are easy to

complete. These claims are physically filed with the court. File the statu-

tory request for special notice of papers filed by anyone. The failure to file a

request for special notice is the number one error of attorneys responding

to a probate or trust proceedings. Mail the notice to everyone and anyone

who is a creditor, the attorneys, the estate administrator. Periodically check

the docket (which is probably online) to make sure that you are getting

notice of all papers, pleadings, and hearing dates. Notice of the proceedings

is paramount. Absent notice, you will be blindsided through the machination

of others, guaranteed.

Do I Get Accruing Interest?

Yes, for secured claims, which means that the claim is secured by an inter-

est in real or personal property, including, for example, a mortgage, deed of

trust, or security interest in personal property.

Yes, for unsecured claims if the estate is solvent. No, for unsecured

claims if the estate is insolvent.

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