Posted by Jimmy on April 09, 2006 at 14:02:19:
short and hypertechnically precise answer: You DON’T secure a claim against the decedent. but fret not.
if there was no probate estate, you have different options.
the probate actually works against creditors, because it cuts off their claims. in non-probate transfers, the claims are not cut off, and the normal statute of limitations applies.
but gaining info on non-probate assets is a lot harder, because there is no public record of the transfers. you need to do your homework, and don’t expect the family to help you. If the claim is big enough, and you are pretty sure the dead dude left assets to cover it, hire a lawyer. It is in the discovery process that you can compel the family memebrs to divulge the info.
if the decedent left property in a typical living trust, where the decedent was a beneficiary, you can seek restitution from the successor trustee of that trust (or the successor trustees of the subtrusts which splintered off the main trust after the decedent died.
if the decedent left property in JTWROS, you can go after the surviving JT, but only to the extent of the decedent’s interest.
if there were assets which passed by contract (life insurance, retirement assets, POD accounts), you can go after the beneficiaries.
again, you gotta find out what assets went where. it helps to have mole in the family who will share info. maybe a child who got stiffed in the trust.