I filed a creditors claim against an estate, I filed on time within the 4 month time frame. It's been more then 30 days and I still haven't received a response in regards to my claim. At this point, is my next step filing a lawsuit, and if so am I suppose to sue the Administrator and his attorney? Do I need a attorney if my claim is more then $70,000.00? What type of attorney would handle a case like this?
If it has been more than 30 days since you filed your claim it is deemed rejected. Your outside limit to file a lawsuit is 1 year from the date of death of the decedent, provided the statute of limitations on the claim does not run sooner.
If you do not file suit timely your claim will not be allowed. Suit should be filed against the personal representative. Once suit is filed you should file, in the probate proceedings, a Notice of Pendency of Action.
What type of attorney would be best? It depends on the nature of the underlying action. For example, if the claim involves personal injuries due to the negligence of the decedent your personal injury attorney would be the best type of attorney to prosecute the action.
For more on creditors’ claims see this LA Superior Court page: www.lasuperiorcourt.org/probate/pdf/CreditorsClaim.pdf
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Estate Planning Attorney
The administrator is responsible for acting on the creditor claims and must allow or reject them in whole or in part. If the administrator does not act within 30 days, you (the creditor) can deem the claim denied and file suit. It could be, however, that the administrator is addressing other claims as well. You could simply contact the administrator and/or the administrator's attorney to determine whether your claim will be allowed or rejected. If you choose to file suit to enforce your claim, it is like any other lawsuit. If you are an individual, you can represent yourself if you choose to do so, but if the claim is by a company, you will need to have an attorney represent you.
This general response is not intended to create an attorney-client relationship.
Estate Planning Attorney
Have you tried contacting the adminitrator and the attorney? Under Probate Code 9250, the adminitrator should allow or reject the claim in writing.
Also depending on local rules in the county of administration, the allowance or rejection may also need to be filed with the court, though usually that is only a requirement if it is a claim by the admnistrator or attorney. If the administrator is acting under the Indepndent Administration of Estates Act, this may also mean that there's no requirement to file the allowance or rejection with the court. So check local rules of the court.
As my colleague said, if it's been more than 30 days, and you haven't heard, you may consider the claim rejected, but I'd try contacting the administrator or attorney first as his or her inaction may not mean the claim was automatically denied.
If you do get a notice of rejection in writing, you'd have to commence the action against the creditor within 90 days of the written notice. A probate litigator could always give you the lay of the land on how to proceed in the county where the estate is being administered, or as my colleague suggested, you can hire a lawyer more specialized in the subject matter of your claim, i.e. personal injury, etc.
This material is for general information purposes only and offers incomplete treatment of the topics covered. The writer assumes no legal responsibility for any use or misuse of the information. Consult your attorney for your individual legal needs as the law changes frequently and only an attorney who is abreast of these changes can give you the up-to-date and specialized help that you require and deserve.
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