Getting a judgement against an estate - Posted by Kristine-CA

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.

Getting a judgement against an estate - Posted by Kristine-CA

Posted by Kristine-CA on April 08, 2006 at 14:00:47:

Does anyone have experience or knowledge with getting a judgement against
an estate in CA? It’s my understanding that a creditor can’t get a judgement
against a deceased person. At least that’s been my experience as I once got a
title company to overlook a judgement based on the fact that it was recorded
after the date of death.

But what about an estate? If I’m a creditor to someone who died, can I sue the
estate and end up with a judgement? When there is no probate opened by an
executor a creditor can open a probate in order to sell the assets to get paid.
But what if I’d rather have a recorded judgement instead of become a probate

Thanks for any thoughts or experiences, Kristine

Re: Getting a judgement against an estate - Posted by Jack

Posted by Jack on April 10, 2006 at 10:11:43:

I have renewed judgments against dead people (in rem). And I observed a situation where a creditor opened an estate to satisfy a judgment (the only one that made money out of that deal was the law firm that managed the resulting estate).

If there is no existing estate, then you have no one to serve. If there is an existing estate, I would presume that you would be required to comply with the claimant procedures defined by probate law, but of course that would vary by State. In short: I doubt it, but I can’t be sure.

Ask and Ye Shall Receive - Posted by Jimmy

Posted by Jimmy on April 09, 2006 at 08:32:44:

Here’s the deal. if your claim is secured by property owned by the decedent, you are ok. no need to file claim. but if you claim is not secured, there is a process.

  1. you need to make you claim (Creditor’s Claim, Form DE-172) with the PR of the Estate. You also file this with the court. You need to do this within 4 months of the time the Estate is opened. That is the creditor period. That’s the time for unsecured creditors and claimants to come forward. Failing to do so may well cut off your claim. There are exceptions here, but I’m not going to get into them.

  2. When you file the DE-172, you should also file a Request for Special Notice (Form DE-154). This will put you on the mailing distribution for all documents filed with court.

  3. If the PR refuses the claim, or will not settle the matter to your satisfaction, you are free to file your complaint (i.e., file a lawsuit against the estate). Oftentimes, this is done at the same time the Creditor’s Claim is filed.

Re: Getting a judgement against an estate - Posted by The Frisco Kid

Posted by The Frisco Kid on April 08, 2006 at 18:26:37:


I don’t know why you wouldn’t be able to get a judgement. How about all those idiots that injure or kill a few people in a wreck along with themselves, don’t their estates get sued after they are dead? I don’t think the law limits your right to sue a dead person for acts committed while they were alive.

Re: Getting a judgement against an estate - Posted by JT-IN

Posted by JT-IN on April 08, 2006 at 15:56:44:


I’m not sure to the answer of your question… however, why would you need to file suit…? If you are in a position solid enough to suit, why not simply present the claim for payment…? A judgment may not be needed.

Now it sounds from your description that probate may not have been opened, which is a problem… and you obviously have a reason why you don’t want to open the probate… but my point is, once the probate is opened, you should be able to make your claim against the estate without filing a suit, and get paid… They can’t close the estate with the pending claim, so they have to do something with the claim. If assets exist, they will usually pay it and be done.

Again, not sure that this addresses you specific situation, but hopefully it helps some. You can find em, can’t you…? LOL


Re: Getting a judgement against an estate - Posted by lukeNC

Posted by lukeNC on April 08, 2006 at 14:52:39:

You can have a creditor’s interest in the estate.

I had a judgment I bought some years ago from a guy who died a few years later. I could have made a big mess, but I let it go.

I know state run agencies can open up probate so that they can get paid.
No sense in making things more difficult for the family.

Re: Ask and Ye Shall Receive - Posted by Kristine-CA

Posted by Kristine-CA on April 09, 2006 at 12:20:05:

I’m familiar with all the processes you mention. Probate is one of my

If one is owed money by the decedent and one knows that a probate
will not be opened, what would you do to secure your claim against the