Today’s Take: Creditors Beware
When someone dies, our initial thoughts usually turn to compassion and reflection. Rarely do we focus on questions like “Does this guy owe me money?”, “Can I still sue this guy for breaching our contract?”, or “How can I insure that this guy’s estate will honor our contract now that he’s dead?” As your trusted ECJ advisor, I’m here to remind you that claims can and should be asserted against a deceased individual to preserve your rights as a creditor. And to do so, you cannot be slow or hesitant to act.
California law requires that any action against a deceased individual be commenced within one year from the date of that person’s death and sooner if a probate estate has been opened. In fact, if a probate estate has been opened, you may be required to file your claim within 60 days from the date of mailing of a notice to creditors. If you didn’t get a specific notice, then your claim must be filed no later than 120 days from the date that a personal representative was appointed by the Court.
It is also worth mentioning that most people would only think to file a creditor’s claim if the decedent was in breach of a contractual obligation at the time of his or her death. However, the above-mentioned limitation periods apply even if the decedent was not in breach. This means that you would still want to promptly file a claim against the decedent to affirm the contract and any obligations owed to you (i.e,. payment, delivery of goods, services, etc). It is a way to have the Court affirm and remind the personal representative of the estate that the decedent has continuing obligations to you.
Filing an action this quickly after a person’s death may seem insensitive, but the law requires that these claims be promptly asserted so that a decedent’ s affairs can be resolved quickly and expeditiously. Therefore, the moral of today’s post is not only that you should to act, but also that you need to act fast when it comes to preserving your rights against a decedent’s estate.
Rodney C. Lee, Partner in ECJ’s Litigation and Estate Planning, Probate & Trusts Departments
Today’s Taste: We are fortunate to live in a state that produces some really good red wine. One of my favorites is Anderson’s Conn Valley, which makes an exceptional Reserve Cabernet Sauvignon. The color of this wine is best described as a gloomy dark purple. It will coat your glass and your palate conjuring up notes of dark earth, black fruit, and leather. This wine is bold and not for the faint of heart, in more ways than one ($50-60 per bottle)! It is at its best when accompanied with a giant porterhouse steak, a potato, some greens, and some old-school jazz. Enjoy!
On Writs and Wine is the blog of ECJ’s Litigation Department, featuring our takes on a variety of litigation-related issues, plus a wine recommendation for your palate’s delight. Your feedback—on both the takes and the wine—is much appreciated. Enjoy!