The art of the claim: Arduous probate process unfriendly for creditors - The Dallas Morning News

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Had Sun Tzu been a 21st-century lawyer rather than an ancient Chinese military strategist, he would have applauded the claims system used in Texas probates. It is designed to build an almost impenetrable defense for the probate estate assets against a primary aggressor: creditors.

In Sun Tzu’s own words, “The supreme art of war is to subdue the enemy without fighting.” The Texas Estates Code makes sure that most creditors never even make it onto the probate battlefield.

A probate is a court-ordered process to settle the estate of a decedent. That includes handling creditors’ claims for payment. No claim is payable unless the creditor follows the rules set out in the Texas Estates Code.

The rules differ according to the type of administration. In a dependent administration, the administrator must seek court approval to take any action. Thus, the timetable and method to present, approve, disprove and pay a creditor claim is strict. By contrast, in an independent administration, the administrator (or executor) does not have to obtain court approval before processing a claim. The court does not even have jurisdiction to get involved with the independent claims process unless a lawsuit is filed.

The timelines start when the estate administrator qualifies to serve and receives “letters of administration.” Within one month, the administrator must publish a general notice to creditors and send a written notice to the state comptroller.

The next type of creditor notice is where things get interesting. The administrator may, but is not required to, give written notice to any individual unsecured creditor that he must present his claim within 121 days, or it will be barred.

The paths for an unsecured creditor then diverge by the type of administration. In a dependent administration, the unsecured creditor must present his claim directly to the administrator or file the claim with the clerk. If the creditor files a claim, then the form and content must meet the statutory requirements, including being supported by an affidavit. Otherwise, it is invalid, and the creditor loses.

In an independent administration, the unsecured creditor must deliver the claim to the administrator, file suit or file the claim with the court. The claim does not have to be supported by affidavit.

Secured creditors are handled a bit differently. Notice to them is required. Upon receiving the notice, the secured creditor is put to an election. He must choose between having the claim approved as a money claim, or having it fixed as a preferred debt and lien against the specific collateral. If he does not timely choose, then the default is that the debt will be treated as a preferred debt and lien.

Once a claim is made in a dependent administration, the administrator has 30 days to allow or reject it. If the claim is allowed, it goes to the judge to approve or deny it. If the claim is rejected, the creditor must file suit within 90 days or lose.

Not so with an independent administrator. There is no time requirement for allowance of a claim, and a claim is not automatically barred if suit is not filed within 90 days.

Approved claims are placed in one of eight classes for payment. Class 1 claims are paid first, then Class 2 and so on. If there is not enough money in the estate, then some approved creditors’ claims will not be paid. Sun Tzu would say those creditors won the battle but lost the war.

Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law and has handled many probate cases. She is board-certified in civil trial law by the Texas Board of Legal specialization. Contact legaltalktexas@hammerle.com to receive her firm’s newsletter. Visit www.hammerle.com for more information. This column does not constitute legal advice and is not a substitute for consultation with a licensed attorney.

Correction: An earlier column misnamed Nancy Cruzan.

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