How long does a creditor have to file a claim against the Estate of a Decedent

Statutes of limitations for creditors to bring a claim against an estate are implemented because there is a strong public policy to protect decedent’s estates from creditors’ stale claims. The California Legislature believed that these limitation periods would promote expeditious estate administration and protect the security of title to estate property for the distributees.

The time limits imposed on creditor claims depends on multiple factors. The main distinction is whether or not a probate estate has been opened. You can usually determine if a probate estate has been opened by visiting the superior court's website in the county where the decedent lived when he or she died.

No Probate Opened

In California, if no probate has been opened, creditors of the decedent generally have one year after the date of death to file a claim. In order for this one year limitation to apply, the decedent must have been personally liable for the claim prior to the decedent’s death and the statute of limitations on that claim must not have expired prior to the decedent’s death.

If you are a creditor and you have missed the filing deadline to make a claim, there might be hope if you can characterize the debt owed as either a constructive or resulting trust. These types of claims have worked in some instances, but courts are reluctant to grant this type of relief absent a strong showing of the requirements of either type of trust.

Probate Opened

If a probate estate has been opened, the time limitations for making a claim are shortened. A creditor of the estate will have the longer of the following:

• Four months after letters are issued to the personal representative.
• Sixty days after a notice of administration is mailed or personally served on a creditor.

If a creditor misses this deadline, it can still petition the court to allow the claim in the following two situations:

1. the personal representative did not provide proper or timely notice to the creditor and that creditor files its petition within sixty days of gaining actual knowledge of the administration of the estate; or
2. the creditor had no knowledge of facts that would have given rise to the claim more than thirty days prior to the expiration of the times listed above and a petition is filed by the creditor within sixty days of the creditor gaining actual knowledge of facts that would give rise to the claim and actual knowledge of the existence of the administration of the estate.