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breeman

Claims against an estate

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Generally, there's a six-month window, but there are exceptions to every rule (o' procedure).  ... and the rule won't keep someone from actually filing/making a claim, but it may be the rule an executor and the court relies on to tell the claimant to pound sand. 
 

I'll note you didn't bother to say where you are or give other particulars.

 

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I thought that there was a statute of limitation for filing a claim against an estate after 6 months from the date of death?

 

You thought this because...???

 

Obviously, the applicable deadline for submitting claims (not really a statute of limitations) depends on the laws of the state in which the estate is being administered, which you didn't identify (and, as such, I'm at a loss to understand the references in the prior response to a general "six-month window" and "exceptions").

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Thanks but I know what the actual Ohio revised code says.

My question is why would a judge allow a claim after the 6 months when the law says all claims should be barred after the 6 months. is he corrupt? Can a judge make his own decision regardless of the Ohio revised code? Can I get a different judge?

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Thanks but I know what the actual Ohio revised code says.

My question is why would a judge allow a claim after the 6 months when the law says all claims should be barred after the 6 months. is he corrupt? Can a judge make his own decision regardless of the Ohio revised code? Can I get a different judge?

 

This indicates to me that you didn't really process my response, if not others.

 

How the heck could we know if the judge is corrupt?  As for "can a judge make his own decision", refer back to my prior response (answer:  yes). 

 

As for "can I get a different judge?", again, refer back to prior response.  You're free to appeal the decision.  But do a cost-benefit assessment first, because it will be a ton of time and effort with absolutely no guarantee that an appellate court will care to correct the "trial" court.  Even if you're 100% right and the facts and the law back you up, in reality, I'm afraid that routinely doesn't really mean much. 

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Sorry I didn't clarify. I'm in Ohio.

 

Then it appears you're correct about the six month deadline.  See ORC 2117.06 (http://codes.ohio.gov/orc/2117.06), but see also ORC 2117.061 for exceptions.

 

 

 

Thanks but I know what the actual Ohio revised code says.

 

Sigh....

 

 

 

My question is why would a judge allow a claim after the 6 months when the law says all claims should be barred after the 6 months.

 

Since you provided no relevant facts whatsoever, and since we obviously haven't read the judge's ruling or viewed any of the papers filed, we have no conceivable way of knowing.

 

 

 

is he corrupt?

 

Always possible but not likely and obviously unknowable without knowing who the judge is (which is not an invitation to identify the judge by name because only someone local will have insight regarding a particular judge, and no one from Ohio posts here with regularity as far as I know).

 

 

 

Can a judge make his own decision regardless of the Ohio revised code?

 

A judge can make no decisions at all except for his own.  If you're intent was to ask whether it's legal for a judge to disregard the law, I certainly hope you know the answer is that it isn't.

 

 

 

Can I get a different judge?

 

Again, you've provided no relevant facts, so we don't know, among other things, what your relationship is to the estate.  If the judge has made a final ruling that allows a particular claim against the estate, and if you believe the judge's decision was legally erroneous, your recourse is to appeal the decision (assuming, of course, that you have standing to do so).

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My wife owns half of the home from her mother passing a few years ago. My father-in-law who was her step father recently passed away in October 2014. Our attorney told us we needed to wait six months before opening a probate case because at that point no claim to be made against the estate. Now a claim has been made against the estate after the six-month a time limit. We went to court a couple days ago where the judge ruled that the claim was valid. And we are being told that we have to sell the house and we will get half of the of the net income from the sale.

Look under the Ohio revised code and it says that you cannot file a claim after six months of the date of death even if the claim is valid.

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What is the point of having laws if judges can do whatever they want anyway?

That's not a very productive question; at any rate, have to treat it as rhetorical.

 

"Our attorney told us we needed to wait six months before opening a probate case because at that point no claim to be made against the estate."

There's no "our" in the equation as it relates to wife's inheriting her mom's interest in a house (Ohio isn't a kitchen sink state which'd give you an interest in the event of a divorce).  Anyhoo, I presume stepfather had no living relatives, because it'd otherwise be weird for an attorney to be talking with your wife about opening a probate estate.

 

Can't explain why an attorney would say to wait to open probate for six months.  His explanation is cockamamie.

 

"We went to court a couple days ago where the judge ruled that the claim was valid."

Without more info, I'd have to speculate that the issue involved more than simply the late filing of the claim if you're talking about the court ruling that the claim is "valid" v. just timely.

"And we are being told that we have to sell the house and we will get half of the of the net income from the sale."

Again, no "we" here, but did your wife really expect her stepfather to have zero estate debt?  And did she expect or want to co-own property with a stranger?  (Also, what kind of debt are we talkin' about here?  And was there a public notice about stepfather's death?)

 

Your wife's free to buy out the estate's interest in the property.

"Look under the Ohio revised code and it says that you cannot file a claim after six months of the date of death even if the claim is valid."

 

Not sure why you're circling back around to restate this.  Rather obviously, one CAN file anything at any time; the question is whether the law and the facts dictate that a court is going to err on the side of the ultimate intent of the law and the factual circumstances. 

 

Ultimately, why would your wife care about whether the creditor's claim is accepted and must be paid?  Only scenario I can imagine is where stepfather left a will to advise that he was leaving his estate to her.  (In that case, it may be too bad that the two didn't simply agree to re-do the deed and agree to own the place going forward as joint tenants w/ right of survivorship.  Assuming there was no mortgage on the place that pre-dated such an arrangement, that would've defeated any creditor claims.)

 

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While I never practiced in Ohio, and it may be unique in this area, but in the three states I have practiced in, the six month clock does not begin to run until probate is opened, since there is no one to file a claim with until the estate is open, and so, where I have practiced, if the claim is filed within the six months after probate is opened it was validily approved.  I understand what you said your attorney told you, I would suggest to consult with another attorney who specializes in Ohio probate to see if your attorney's instructions were valid and Ohio is unique in this interpretation.

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While I never practiced in Ohio, and it may be unique in this area, but in the three states I have practiced in, the six month clock does not begin to run until probate is opened, since there is no one to file a claim with until the estate is open, and so, where I have practiced, if the claim is filed within the six months after probate is opened it was validily approved.  I understand what you said your attorney told you, I would suggest to consult with another attorney who specializes in Ohio probate to see if your attorney's instructions were valid and Ohio is unique in this interpretation.

 

It is a pretty good dodge, isn't it?

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Your wife would not normally inherit anything from her stepfather.  The old rule is you inherit by blood, not marriage.  Unless her stepfather had a will leaving his half interest in the house to her, his half interest would be inherited by his descendants.  I suspect what you are calling a "claim against the estate" is actually a claim that her stepfather's half interest was not part of the estate.  A claim against the estate is typically a claim for debts incurred by the descedent such as medical expense, credit card debts, loans, etc.

 

Because you say the decision is that the house should be sold and your wife is to receive one-half of the proceeds, that seems to confirm that the court found she only owned the one half left to her by her mother.

 

Please confirm whether the question revolved around debts owed or ownerhip of the home.

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What is the point of having laws if judges can do whatever they want anyway?

 

You seem to be operating under the assumption that the judge basically said, "well heck, it's Tuesday, so f*** the law; today is make it up on the spot day!"  While that's conceivably possible, it's awfully unlikely.  More likely is that there was a legally valid reason for allowing the claim that isn't apparent simply from reading the statute.

 

So that then begs the question why did the judge make the ruling.  Needless to say, we don't know.  We weren't present in court when the judge made the ruling, and we haven't read the judge's written ruling explaining the decision (if there was one).  But your lawyer probably knows.  Did you ask him why the judge allowed the claim even though it was presented more than six months after date of death?  If not, why not?  If so, what response did you receive?  As several of the prior responses have noted, it would also be helpful to know the specific nature of the claim at issue.

 

The other possibility, of course, is that the judge believed (for whatever reason) that he/she was making a legally correct decision but got it wrong.  It certainly happens.  As I mentioned before, your recourse if you think the judge made a legally erroneous decision, is to appeal.  Of course, you'll have to decide whether the amount of $$ at issue justifies the expense of an appeal.

 

 

 

While I never practiced in Ohio, and it may be unique in this area, but in the three states I have practiced in, the six month clock does not begin to run until probate is opened, since there is no one to file a claim with until the estate is open, and so, where I have practiced, if the claim is filed within the six months after probate is opened it was validily approved.

 

I also have never practiced in OH, but the statute seems pretty clear:  "Except as provided in section 2117.061 of the Revised Code, all claims shall be presented within six months after the death of the decedent, whether or not the estate is released from administration or an executor or administrator is appointed during that six-month period."  ORC 2117.06(B) (emphasis added).

 

Frankly, it's a bit of a bizarre statute since it requires presentment of a claim "whether or not . . . an executor or administrator is appointed during [the] six-month period," but the prescribed methods of presenting a claim (in sub-section (A)(1)) all require that a claim either be presented to the exec/admin or be "actually received by the executor or administrator within the" six-month period.  It makes no sense that a claim must be presented within six months after date of death, regardless of whether there is an exec/admin, but require that the claim either be presented to the exec/admin or be received by the exec/admin during that time period.

 

The illogic behind this statute tells me that there's either more to it than I've read or that there is case authority that interprets the statute in a way that avoids the silly game of "hey...let's wait six months before opening probate so that we can screw over all the creditor!  <snicker, snicker>"

 

The OP:  I hope this discussion gives you a sufficient frame of reference that you can have an intelligent discussion with your attorney about this.

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You seem to be operating under the assumption that the judge basically said, "well heck, it's Tuesday, so f*** the law; today is make it up on the spot day!" While that's conceivably possible, it's awfully unlikely. More likely is that there was a legally valid reason for allowing the claim that isn't apparent simply from reading the statute.

So that then begs the question why did the judge make the ruling. Needless to say, we don't know. We weren't present in court when the judge made the ruling, and we haven't read the judge's written ruling explaining the decision (if there was one). But your lawyer probably knows. Did you ask him why the judge allowed the claim even though it was presented more than six months after date of death? If not, why not? If so, what response did you receive?

The other possibility, of course, is that the judge believed (for whatever reason) that he/she was making a legally correct decision but got it wrong. It certainly happens. As I mentioned before, your recourse if you think the judge made a legally erroneous decision, is to appeal. Of course, you'll have to decide whether the amount of $$ at issue justifies the expense of an appeal.

I also have never practiced in OH, but the statute seems pretty clear: "Except as provided in section 2117.061 of the Revised Code, all claims shall be presented within six months after the death of the decedent, whether or not the estate is released from administration or an executor or administrator is appointed during that six-month period." ORC 2117.06(B) (emphasis added).

Frankly, it's a bit of a bizarre statute since it requires presentment of a claim "whether or not . . . an executor or administrator is appointed during [the] six-month period," but the prescribed methods of presenting a claim (in sub-section (A)(1)) all require that a claim either be presented to the exec/admin or be "actually received by the executor or administrator within the" six-month period. It makes no sense that a claim must be presented within six months after date of death, regardless of whether there is an exec/admin, but require that the claim either be presented to the exec/admin or be received by the exec/admin during that time period.

The illogic behind this statute tells me that there's either more to it than I've read or that there is case authority that interprets the statute in a way that avoids the silly game of "hey...let's wait six months before opening probate so that we can screw over all the creditor! <snicker, snicker>"

The OP: I hope this discussion gives you a sufficient frame of reference that you can have an intelligent discussion with your attorney about this.

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The way our attorney explained was that anyone can open a probate case and become the executor. If the debtor wants their money then they have the opportunity to start probate. If we open probate before the 6 months is up then that invites any debtor to file a claim.

My father in law does have a brother who is his only living relative. He lives several hours away and has no interest in the house. He knows that his brother wanted us to have the house in the event that he passed. Unfortunately he was a procrastinator and passed suddenly with no warning so a will was never completed.

Obviously the brother can't sign over the other half of the house until we resolve this matter.

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"If we open probate before the 6 months is up then that invites any debtor to file a claim."

I presume this stellar attorney didn't cover all the exceptions to and vagaries the law in his advice. 

"My father in law does have a brother who is his only living relative. He lives several hours away and has no interest in the house. He knows that his brother wanted us to have the house in the event that he passed."

 

If the house is the main asset and there's estate debt, there may be nothing for the brother to inherit.  At any rate, if he's serious, he's free to sign over his interest in the house to your wife (or whomever the heck he pleases) in consideration for a buck.

 

"Obviously the brother can't sign over the other half of the house until we resolve this matter."

 

Still disputing the notion that there's a "we" in this, that assertion is incorrect.  He's free to execute a quit claim of any interest he's got in the place to her at any d*** time he pleases, so long as he's of sound mind.  He's free to sign over all interest, if any (meaning whether or not he actually has an ownership interest), in the Brooklyn Bridge too.

 

That doesn't resolve the issue of this mysterious estate debt/creditor claim that you don't bother to explain, but information about which might have spared folks a lot of time on these posts.  :)

 

Edited by Findlaw_FN
Edited for Language- Moderator

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I can only assume that you either aren't married or went through a nasty divorce or maybe you're just a bad spouse.

But I've been married for 10 years have two young children and we are living in this house and we hired an attorney together using our money. So until I get a divorce, of which we have no intention I do have interest

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