Why Follow the Washington Creditor’s Claim Procedure?
- Why Publish a Probate Notice to Creditors?
- Why Send Actual Notice?
- Why Insist on a Lawfully Presented Creditor’s Claim for Payment?
Washington law no longer requires a Personal Representative to publish a Probate Notice to Creditors — the legislature has just made it highly advantageous to do so in most circumstances:
Publishing a Probate Notice to Creditors allows you to reduce the Statute of Limitations from 24 months after date of death to 4 months after the date of first publication for any claim that would NOT have been expected to have been found in a diligent review of Decedent’s correspondence and financial records. See: Statute of Limitations.
Another advantage of following the Creditor’s Claim procedure is that its statute of limitations extends not only over both halves of any community property (including the surviving spouse’s one-half interest in community property) but also over both halves of any community debt (including the surviving spouse’s one-half interest in any community obligation). Sutton v Hirvonen, 113 Wn.2d 1 (1989).
Similarly, Washington law does not require a Personal Representative to give actual notice to known creditors — again, the legislature has just made it highly advantageous to do so in most circumstances:
So long as you lawfully publish a Probate Notice to Creditors, giving actual notice (within the first 3 months after first publication) allows you to reduce the Statute of Limitations from 24 months after date of death to 4 months after the date of first publication for another, important class of creditors — those with claims that would have been expected to have been found and were actually found in a diligent review of Decedent’s correspondence and financial records. See: Statute of Limitations.
Bottom-line: The legislature is making you an offer that is hard to refuse:
- If you:
- Lawfully publish a Probate Notice to Creditors,
- Diligently review Decedent’s correspondence and financial records, and
- Timely send actual notice to the possible creditors found in your review; then:
- The State will indemnify you and Decedent’s estate for (almost) all creditors who file Creditor’s Claims after four months following first publication up until 24 months after date of death.
Otherwise, the estate remains liable (in most cases) until 24 months after date of death. This means that any heir or beneficiary who receives an estate asset remains liable for dilatory Creditor’s Claims until the second anniversary of Decedent’s death. Most Personal Representatives find the finality of the shortened 4 month period and the ability to transfer assets free of contingent claims advantageous.
Side-bar: Your author routinely receives Emails and telephone calls from Personal Representatives whose estates have been open for months and are ready to close except that they chose not to publish a Probate Notice to Creditors, and they are now in a quandary over whether to:
- Close the estate and distribute its assets before the expiration of the 24-month Statute of Limitations period, or
- Wait until 24 months after death & then close the estate and make final distribution.
There really is no satisfactory answer to this situation.
Please avoid it altogether by following the Probate Creditor’s Claims procedure.
It generally should take no longer that an hour or two and cost a little over $100.
Then you’ll likely be able to close soon after four months after first publication of your Notice to Creditors and the takers will likely take free of almost all potential claims.
Query: What creditors are left for which the estate remains liable after the four month statutory period?
The ones that were there and would have been expected to have been found during your review but weren’t —ie, those that weren’t found due to your negligence (with the creditor having the burden to prove your negligence).
How can you protect yourself from them?
See: Evidencing Your Reasonable Review.
Query: Doesn’t publishing a Notice to Creditors just unnecessarily delay by months the time when the estate’s assets may be distributed to its heirs or beneficiaries and the probate may be closed? True, it may delay by several months the closing of the probate — but not necessarily distribution of the assets of the estate. See: Making Preliminary Distributions.
Why Insist on a Lawfully Presented Creditor’s Claim for Payment (other than “because it’s the law”)?
Caution: Washington law requires that a creditor timely file and serve a Creditor’s Claim before a Personal Representative may lawfully pay the corresponding debt Decedent incurred during his/her lifetime. Cloud v. Summers, 98 Wn.App. 724 (1999); Estate of Wilson, 8 Wn.App. 519 (1973) “The nonclaim statute [ie, RCW 11.40.051, providing for the 4-month Creditor’s Claim period] is mandatory and not subject to enlargement by interpretation; and it cannot be waived.” Ruth v. Dight, 75 Wn.2d 660, 669 (1969). Paying a debt before the timely filing and serving of its Creditor’s Claim opens a Personal Representative to the possibility of personal liability to the estate for the amount of the payment, for example, if:
- The Creditor’s Claim is:
- Never filed or served, or
- Not filed & served within the statute of limitations period; or
- The estate is or becomes insolvent.
Protect yourself, the estate, and its beneficiaries, heirs, and creditors by following the statutory Creditor’s Claim procedure
for the payment of Decedent’s debts:
Insist upon the proper and timely presentation of a Creditor’s Claim before payment.