PROMPT CREDITOR ACTION NECESSARY TO PRESERVE CLAIMS AGAINST DECEASED DEBTOR’S ESTATE

Lenders, credit card companies, debt buyers, and other creditors often hold claims against individuals who have died. In Maine, the process for enforcing claims against deceased debtors is governed by the Maine Probate Code, which is codified in Title 18-A of the Maine Revised Statutes. If the decedent’s estate is solvent, then creditors will receive full or partial payment of their claims, but only if the creditors act in a timely fashion to preserve their claims against the decedent’s estate.

As a rule, a claim against a deceased debtor is not extinguished simply because the debtor has died. Section 3-817 of the Maine Probate Code provides that “[n]o personal action or cause of action is lost by the death of either party, but the same survives for and against the personal representative of the deceased, except that actions or causes of action for the recovery of penalties and forfeitures of money under penal statutes do not survive the death of the defendant.” 18-A M.R.S. § 3-817. Claims which survive the debtor’s death must nevertheless be asserted against the decedent’s estate in a timely manner or be forever barred.

Under Maine’s Probate Code, creditor claims which arose before the decedent’s death must be “presented” (a term used in the Probate Code) within certain time limits in order to be considered for payment in the administration of the estate. The creditor’s claim can be presented in one of two ways: the creditor can send to the personal representative of the estate or file with the appropriate Probate Court a written statement of claim containing basic information required by statute, or the creditor may commence an action against the personal representative of the estate in an appropriate state court. 18-A M.R.S. § 3-804. Whichever method of presenting the claim is used, the creditor must present the claim within the strict time limits specified in the Maine Probate Code or the claim will be barred and therefore not paid by the personal representative of the estate. The time limit for presentation of claims set forth in the Probate Code is the earlier of the following: 1. Four months from the date of the first publication of notice to creditors in the newspaper; 2. Sixty days after the personal representative’s mailing of a notice to the creditor to present its claim; or 3. Nine months after the decedent’s death. 18-A M.R.S. § 3-803.Given the short time period for presenting claims against a decedent’s estate, creditors must be vigilant and take action as soon as possible after the decedent’s death to present claims against the estate. The claim presentation deadline is not extended because the creditor was not aware of the decedent’s death, putting the onus on creditors to constantly inquire concerning the possibility that a debtor has died. Although information concerning probated estates is easily obtained by conducting a search on the Maine Probate Courts’ website, www.maineprobate.net, it is not as easy to obtain information about deceased individuals whose estates have not yet been probated. Claims against deceased persons whose estates have not yet been admitted to probate can be presented and preserved by filing the claim with the appropriate Maine Probate Court along with a demand for notice 18-A M.R.S. § 3-804(4), but this presumes that the creditor has learned that the debtor has died.

The Maine Probate Code’s deadlines for presentation of claims do not apply to certain classes of claims, e.g., secured claims where the creditor wishes to proceed against the collateral only or claims covered by insurance up to the limits of the insurance policy only. 18-A M.R.S. § 3-803(c). Additionally, other statutes of limitation or out of state claims barring statutes may bar a creditor’s claim even before the Maine Probate Code’s bar dates have passed. 18-A M.R.S. § 3-802; 18-A M.R.S. § 3-803(a-1). Different bar dates apply to claims arising after the date of the decedent’s death.

Lastly, even if a claim is presented in a timely fashion, additional action may be required on the part of the creditor to preserve the claim. For example, if the personal representative of the estate disallows a claim, the creditor must initiate a proceeding to enforce the claim within sixty days of the personal representative’s mailing of a notice of disallowance to the creditor. 18-A M.R.S. § 3-804(3). Failure to take such action will also result in the claim being barred and therefore unpaid by the personal representative of the estate.

If you are a creditor holding a claim against a deceased debtor who resided in the State of Maine at the time of his or her death, the attorneys at Gosselin & Dubord, P.A. located in Lewiston, Maine have extensive experience with creditor representation in connection with probate claims. Please contact Attorney David R. Dubord at (207) 783-5261 or drd@gosselindubord.com.