Chapter 307
2008 -- H 7982
SUBSTITUTE A
Enacted 07/05/08
A N A C T
RELATING
TO PROBATE PRACTICE AND PROCEDURE - CLAIMS AGAINST
DECEDENT'S
ESTATES
Introduced
By: Representatives Jackson, Lewiss, and Scott
Date
Introduced: February 26, 2008
It is enacted by the General Assembly as
follows:
SECTION 1.
Sections 33-11-17, 33-11-33, 33-11-46 and 33-11-47 of the General Laws
in Chapter 33-11 entitled "Claims Against
Decedents' Estates" are hereby repealed.
33-11-17.
Hearings by court. -- The probate court shall give notice to
creditors whose
claims are referred of the time when and place
where their claims will be scheduled for hearing.
The court shall attempt to schedule the hearings
within thirty (30) days after the expiration of the
time limited for proving claims, unless further
time for cause shown is allowed by the court.
33-11-33.
Interest on claims against solvent estate. -- In solvent estate
cases, the
probate court shall allow interest to the
expiration of the commission on claims carrying interest,
and on claims not carrying interest to the same
time from the death of the testator or intestate;
upon claims not due and not bearing interest
they shall discount the sum as will reduce them to
their present value.
33-11-46.
Proof of claim paid before appointment of commissioner. -- In
case of an
insolvent estate, if the executor or
administrator has paid any just claim due to a creditor in full or
in part before the probate court hearing, he or
she may prove the claim before the court; provided,
the court may allow the proof to be made at a
hearing on an account filed by the estate
representative.
33-11-47.
Restriction on actions against insolvent estate. -- Except as
provided in
sections 33-11-9 and 33-11-44, no action shall
be maintained against an executor or administrator
after an estate has been represented insolvent;
provided, that a creditor who, under the provisions
of section 33-11-5, may file his or her claim
after the expiration of six (6) months from the date of
the first publication of notice, may, if the
assets prove more than sufficient to pay all claims
allowed or proved, file and prosecute his or her
claim at any time before the complete distribution
of surplus assets.
SECTION 2. Sections
33-11-1, 33-11-2, 33-11-4, 33-11-5, 33-11-5.1, 33-11-7, 33-11-8,
33-11-9, 33-11-10, 33-11-11, 33-11-12, 33-11-13,
33-11-14, 33-11-15, 33-11-16, 33-11-19, 33-
11-20, 33-11-21, 33-11-22, 33-11-24, 33-11-35,
33-11-42, 33-11-44, 33-11-45, 33-11-48, 33-11-
49 and 33-11-50 of the General Laws in Chapter
33-11 entitled "Claims Against Decedents'
Estates" are hereby amended to read as
follows:
33-11-1.
Computation of time. -- Periods of time in this chapter, where no other
provision is made, shall be reckoned from the
date of the first publication by the probate clerk of
the notice of the qualification of the first
executor or administrator original personal
representative of the decedent's estate.
33-11-2.
Effect of administration de bonis non. -- When an executor or
administrator
after qualification the original personal
representative dies, resigns or is removed, without having
fully administered the estate, and a new
administrator successor personal representative is
appointed, the new succeeding
administration shall be deemed to be a continuation of the
preceding administration, and all limitations
which could be claimed for or against the
predecessor may be claimed for or against the successor;
provided, however, that the time when
there is no personal representative of
the estate shall not be reckoned as part of the periods for the
filing, or proof of claims, or limitations for
bringing suits; and these periods, and generally the
periods referred to where no provision to the
contrary is made, shall be reckoned exclusive of this
time.
33-11-4. Manner
of filing claims -- Copy to executor or administrator. -- Manner
of
presentation of claims. -- All persons having
claims, including pending suits, preferred claims,
and claims of the executor or administrator,
against the estate of a deceased person shall file
statements of their claims in the office of the
clerk of the probate court in such form which
adequately sets forth the nature and approximate
amount (if known) of the claim, and the name
and address of the claimant and of his or her
attorney, if any. Each statement of claims, other than
that filed by an executor or administrator,
shall contain an affidavit that a copy of the statement
was transmitted by hand delivery, or forwarded
to the executor or administrator, or his or her
attorney of record by registered or certified
mail, return receipt requested.
Claims against
a decedent's estate may be presented as follows:
(a) The
claimant shall present a written statement of the claim with the clerk of the
probate court indicating its basis, the amount
claimed (if known), the name and address of the
claimant, and the name and address of the
claimant's attorney (if any) and deliver or mail a copy
thereof to the personal representative. The
claim is deemed presented when filed with the probate
court. The claimant has the burden of
establishing proper and timely presentation of the claim. If
the claim is not yet due, the date when it will
become due shall be stated. If the claim is
contingent or unliquidated, the nature of the
condition or uncertainty shall be stated. If the claim
is secured, the security shall be described.
Failure to accurately describe the due date of claim not
yet due, the nature of any condition or
uncertainty, or the security, does not invalidate the
presentation made.
(b) No
presentation of claim is required for matters already claimed in proceedings
which
were pending against the decedent at the time of
his or her death. No personal representative shall
be held to defend and no decedent's estate shall
be held liable for any claim pending against the
decedent until the estate shall be joined as a party
with notice to the probate court and the
personal representative served.
33-11-5. Time
allowed for filing claims -- Petition to allow late filing -- Appeal. --
Time allowed for presenting claims - Late claims
- Appeal. --
Claims shall be filed within six
(6) months from the first publication. Claims
not filed within six (6) months from the publication
shall be barred; provided, that a creditor who,
by reason of accident, mistake or any other cause,
has failed to file his or her claim, may, at any
time, before the distribution of the estate, petition
the probate court for leave to file his or her
claim, and the probate court, after notice to the
executor or administrator of the estate and a
hearing on the petition, may in its discretion, grant
leave to file the claim upon the terms, if any,
as the court shall prescribe, which claim, if allowed,
shall be paid out of the assets remaining in the
hands of the executor or administrator at the time
of the receipt by him or her of notice of the pendency
of a petition, and there shall be no appeal
from an order or decree granting leave to file
the claim. From an order or decree denying leave to
file the claim an appeal may only be taken to
the superior court where it shall be heard de novo,
and without a jury, and neither the rulings of
the superior court, nor its order or decree shall be
reviewable by an appeal or bill of exception.
(a) Claims
shall be presented within six (6) months from the first publication or be
forever barred, subject to extensions granted
pursuant to subsection 33-11-5(b).
(b) A creditor
who, by reason of accident, mistake, excusable neglect or lack of adequate
notice of decedent's estate, failed to present a
claim within six (6) months from the first
publication, may before distribution of the
estate, petition the probate court for leave to present a
claim out of time. For purposes of this section,
notice of commencement of probate pursuant to
section 33-11-5.1 at least sixty (60) days
before the expiration of the six (6) months claim period
shall be deemed adequate. Upon hearing after
notice to the decedent's personal representative,
heirs and beneficiaries (if any), the probate
court may in its discretion, grant leave to present the
claim out of time upon such terms as the court
prescribes. Any claim presented out of time, if
allowed, shall be paid out of the assets
remaining in the personal representative's hands when
notice of the petition was received.
(c) There shall
be no de novo appeal to the superior court from an order or decree of the
probate court granting leave to present a claim
out of time.
33-11-5.1.
Duty to notify known or reasonably ascertainable creditors. -- (a) If
the
identity of a creditor of an estate the
decedent's is known to or reasonably ascertainable by an
executor or administrator, such executor or
administrator shall
the personal representative, shall
within a reasonable period of time after
qualification, the personal representative take such steps
as are reasonably necessary to ensure
that such creditor receives or has received actual notice of
the commencement of the decedent's
estate. The sending of a notice in the form contained in
subsection (b) by such fiduciary to such
creditor the personal representative to the creditor at
his/her or its last known address, by first
class mail, postage prepaid, shall be deemed to be a
means, but not the exclusive means, of
satisfying the requirements of this section. The personal
representative is not liable to a creditor or to
a successor personal representative of the decedent
for giving or failing to give notice under this
section.
(b) An executor
or administrator A personal representative shall be conclusively
presumed to have complied with this section by
sending a written notice in substantially the
following form:
STATE OF RHODE
ISLAND PROBATE COURT OF
COUNTY OF
______________ THE ____________________________________
ESTATE OF (NAME OR
ESTATE) (NO.) _________________________________
NOTICE OF
COMMENCEMENT OF PROBATE
To: (Name of
Creditor)
(last known
address of creditor)
Notice is hereby
given by (name of fiduciary personal representative) that a
probate
estate has been commenced for (name of decedent)
in the Probate Court of the (name of
municipality, address of court) docket no.
__________, said (name of fiduciary) having been
qualified on (date of qualification).
A creditor must
present a written statement of the claim indicating its basis, the amount
claimed, the name and address of the claimant,
and the name and address of the claimant's
attorney (if any) within six (6) months after
qualification. Claims should be mailed to the personal
representative or attorney named below and filed
with the clerk of the probate court.
_________________________________________________________
Name and address
of
Estate Personal
Representative or Attorney
_________________________________________________________
Date
33-11-7. Affidavit
to support claim. -- A claimant shall, if requested by the executor
or
administrator, file in the office of the clerk
of the probate court an affidavit in support of this
claim, stating to the best of his or her
knowledge and belief that he or she has given credit to the
estate for all payments and offsets to which it
is entitled, and that the balance claimed is justly
due, and what security, if any, he or she holds
for his or her claim, and, if the claim is not upon a
negotiable instrument, that no negotiable
instrument has been given.
If requested by
the personal representative or any party interested in decedent's estate, a
claimant shall file in the office of the clerk
of the probate court a sworn affidavit stating to the
best of the claimant's knowledge and belief: (a)
the legal basis or theory of the claim; (b) the facts
and documentation supporting the claim; (c) the
calculation of the amount claimed as justly due;
(d) whether the estate was credited for all
payments and offsets to which it is entitled; (e) whether
and how the claim is secured; and (f) whether
the claim is upon a negotiable instrument.
33-11-8. Determination
of executor's or administrator's claim. -- Determination
of
personal representative's claim. -- If an executor or
administrator a personal representative shall
file present a claim which he or she had
against the testator or intestate decedent in his or her
lifetime, the probate court shall examine and
determine the claim. If there is a co-executor or co-
administrator, he or she shall may be
permitted to represent the estate at the hearing in the
discretion of the probate court; otherwise, the probate
court may appoint some disinterested
person to represent the estate.
33-11-9. Filing
of contingent claim -- Deposit by executor or administrator to assure
payment. -- Presentation of
contingent claim -- Deposit by personal representative to assure
payment. --A person creditor
who has a contingent claim against a deceased person decedent,
which cannot be proved as a debt within the time
allowed for filing presenting claims, may file
his or her present its contingent claim in
the office of the clerk of the probate court within the
time allowed for filing claims. If, upon examination,
it appears to the court that the claim may
become justly due from the estate, the probate
court shall order the executor or administrator to
deposit in the registry of the court assets
sufficient to satisfy the claim, or its proportionate share
in case of insolvency of the estate. If it is determined
by the probate court, upon hearing after
notice to all interested parties, that the
contingent claim may become due from the estate, the
personal representative shall be ordered to
deposit in the registry of the court assets sufficient to
satisfy the claim, or its proportionate share in
case of insolvency of the estate.
33-11-10.
Bond to cover contingent claim. -- If a person party
interested in the estate
offers to give bond to the alleged contingent
creditor, with sufficient surety or sureties for the
payment of his or her the claim in
case it shall be proved to be due, the probate court may order
accept a bond to be taken instead of requiring
assets to be deposited as provided in section 33-11-
9. But nothing contained in this section shall
be construed to prevent any person party holding the
contingent claim from waiting until his or
her its right of action accrues, and then bringing suit
against the heirs, devisees, legatees or next of
kin, as provided in this chapter.
33-11-11.
Provision for payment of contingent claim not conclusive as to validity --
Restrictions on action to enforce claim. -- The decision of the
probate court as to depositing
assets or giving bond upon the contingent
claim of a creditor shall not be conclusive as to the
validity of the claim against the executor or
administrator personal representative or other person
party interested to oppose the allowance thereof; and
they the personal representative shall not be
compelled to pay the claim, unless it is proved
to be due in an action commenced by the claimant
within one year after his or her its
claim becomes payable. In case of suit against the executor or
administrator personal representative, recovery
shall be limited to the assets in the registry of the
court deposited as provided in section 33-11-9.
33-11-12.
Party against whom contingent claim enforced -- Time of bringing action.
-- The action referred to in section 33-11-11
shall be brought against the executor or administrator
personal representative, if he or she has
been required to deposit depositing assets therefor in the
registry of the court was required, and
an action against the executor or administrator personal
representative may be brought although the period of
two (2) years, referred to in section 33-11-
50, has elapsed; otherwise, the action shall be
brought upon the bond given under section 33-11-
10.
33-11-13. Pleadings
in action on bond for contingent claim. -- If the action is brought
on a bond, the plaintiff shall set forth his or
her original cause of action against the deceased
decedent in like manner as would be required upon the
same demand against the executor or
administrator personal representative, and may
allege the nonpayment of the demand as a breach
of the condition of the bond; and the defendant
may answer any matter of defense that would be
available in law against the demand if
prosecuted in the usual manner against the executor or
administrator personal representative.
33-11-14.
Disallowance of claim. -- Any claim filed presented
within six (6) months
from the first publication may be disallowed in
full or in part, within six (6) months and thirty
(30) days from the first publication by the executor
or administrator personal representative, or by
any person interested party, by
filing in the office of the clerk of the probate court a statement
disallowing the claim, and giving notice in
writing, either personally or by registered or certified
mail, to the claimant, whose claim is
disallowed; and any claim filed presented after six (6)
months from the first publication may be
disallowed in full or in part, within thirty (30) days after
notice of filing presentation.
33-11-15.
Petition for filing of late disallowance. -- An executor or
administrator A
personal representative, or any person
interested party, who has failed to disallow any claim
within the time prescribed by section 33-11-14,
may at any time before the distribution of the
estate, if the claim has not been paid, petition
the probate court for leave to file a statement
disallowing disallow the claim out of
time., and the probate court, after notice to all parties
interested and a hearing on the petition, may
grant leave to file the statement upon the terms, if
any, as the court shall prescribe; and if leave
is granted, the claim may be disallowed as aforesaid
within the time fixed by the court with the same
effect as if the same had been disallowed within
the time prescribed by section 33-11-14. Upon hearing after
notice to all interested parties, the
probate court may in its discretion grant leave
to disallow the claim out of time upon such terms
as the court prescribes; and if the claim is
disallowed within the time fixed by the court it has the
same effect as if disallowed within the time
prescribed by section 33-11-14.
33-11-16. Probate
court to hear disallowed claims against solvent estate. -- Probate
court determination of disallowed claims against
solvent estate. --
If the estate
is solvent, the executor, administrator, or creditor filing the claim may,
within ten (10) days after disallowance of a claim,
file a request that any claim disallowed be
proved before the probate court. All claims
disallowed shall be heard and decided by the probate
court, and no suit shall be brought upon any
claim, until the hearing is held by the court. If the
estate is solvent, the personal representative,
claimant or an interested party may request that the
probate court determine the disallowed claim by
petition filed within twenty (20) days of the
disallowance. If no such request is timely made
or if the probate court in its sole discretion finds
that pleading, discovery and trial of the issues
presented would be more efficiently presented in
the district or superior court depending upon
the amount in controversy, the disallowance shall be
affirmed by order of the probate court and the
claimant shall bring civil action on the disallowed
claim pursuant to section 33-11-48 within thirty
(30) days of the entry thereof or said claim shall
be forever barred.
33-11-19.
Payment of claims allowed or proved. -- (a) After the expiration of six
(6)
months and filing a statement of claims
disallowed, if any there be, as provided in section 33-11-
14, the executor or administrator personal
representative, if he or she has sufficient assets to pay
in full all creditors who have filed their
claims within six (6) months, shall pay claims not
disallowed, and shall pay claims so filed and
disallowed when proved shall proceed to pay the
claims allowed or proved against the estate in
the order of priority prescribed, after making
provision for costs and expenses of
administration, taxes, allowances, claims presented but
pending determination or appeal and claims not
barred that may yet be presented.
(b) Claims
thereafter filed presented and not disallowed, or disallowed and
afterwards
proved, shall be payable only out of assets
remaining in the hands of the executor or administrator
personal representative.
(c) The
personal representative may pay any just claim that has not been barred at any
time, with or without formal presentation, but
is personally liable to any other claimant whose
claim is allowed and who is injured by its
payment if: (1) payment was made within the claim
period and the personal representative failed to
require the payee to indemnify the estate for
refund of any of the payment necessary to pay
other claimants; or (2) payment was made, due to
negligence or willful fault of the personal
representative, in such manner as to deprive the injured
claimant of priority.
33-11-20. Application
of later discovered assets -- Extension of time for filing claims.
-- Application of later discovered assets --
Extension of time for presenting claims. -- If
further assets come to the hands of an
executor or administrator are discovered and recovered by
a personal representative after the expiration of
six (6) months from the date of the first
publication of notice of the qualification of
the first executor or administrator original personal
representative, he or she shall apply the assets to the
payment of the claims of creditors and
account therefore in the same manner as assets
received within six (6) months; and if the surplus
of the assets remaining after payment of the
claims in full is, in the opinion of the probate court,
sufficient to warrant so doing, the probate
court may order notice given of the receipt of the assets
and may extend the time for filing presenting
claims not to exceed six (6) months after notice.
Claims filed presented within the
extended time may be allowed or proved in the same manner as
claims filed presented within six
(6) months and shall be payable out of the assets remaining in
the hands of the executor or administrator
personal representative. In case of disallowance of a
claim, suit may be brought only within six (6)
months after notice of disallowance.
33-11-21.
Estate rendered insolvent by claims after allowance of account. -- If an
executor or administrator a personal
representative pays out, in accordance with law, the whole of
the estate, he or she shall not be required, in
consequence of the filing presentation of further
claims, to represent the estate insolvent, but
this payment, after allowance of his or her account,
shall bar any action against him or her.
33-11-22.
Estate rendered insolvent by late claims. -- If an executor or
administrator a
personal representative pays, under the
provisions of section 33-11-19, so much of the estate and
effects of the deceased decedent that the
remainder is insufficient to satisfy the claims filed
presented after the expiration of the six (6) month
period, and any of the said late claims are
disallowed, he or she the personal
representative may represent the estate insolvent, and shall,
pursuant to decree of the probate court, divide
and pay over the remaining estate and assets,
remaining in his or her hands, among the creditors
entitled to payment.
33-11-24.
Hearings on insolvent estates. -- An executor or administrator A
personal
representative, at any time during administration, may
represent the insolvent estate to the probate
court, and apply for the probate court to
examine and determine claims. If the probate court finds
the estate is probably insolvent, and there
are claims which have been disallowed, it shall
schedule a hearing on the claims. it shall hear and
determine all disallowed claims and the priority
of payment among all presented claims.
33-11-35.
Offset of mutual claims. -- When there are mutual claims between the
estate
of the deceased decedent and the person
claiming as a creditor claimant, which are subject to
offset, the probate court, after reducing the
claim of the creditor to its present value, if there is a
balance in his or her favor, shall consider any
mutual claims and allow the creditor claimant only
the balance justly due.
33-11-42. Appeals
to superior court. -- Actions beyond probate court. --
Any person
whose claim is not allowed in full by the
probate court on either a solvent or insolvent estate may
appeal to the superior court from the decree of
the probate court pursuant to the provisions of
section 33-23-1 et seq.; and in like manner an
executor, administrator, creditor, or other party
interested may appeal with respect to any claim
allowed.
The exclusive remedy of any claimant
whose claim is disallowed, in full or in part,
by the probate court shall be a civil action on the
disallowed claim in the district or superior
court depending upon the amount in controversy
pursuant to section 33-11-48. The personal
representative or other interested party may appeal the
disallowance of any claim, in full or in part,
for de novo determination in the superior court
pursuant to section 33-23-1 et seq.
33-11-44.
Claims based on action commenced against decedent before death. -- Any
action or suit brought against a decedent in his
or her lifetime, which survives, and in which the
executor or administrator personal
representative shall be notified to take upon himself or herself
itself the defense as provided in section 33-18-8, and
any action or suit, upon any cause of action
originating in the lifetime of the decedent and
which survives, brought against the executor or
administrator personal representative before
the estate has been represented insolvent, shall not
abate, but may be prosecuted to final judgment
against the estate. Those claims shall be filed may
be presented in the office of the probate clerk as
provided in sections 33-11-4 and 33-11-5, but
need not be proved before the probate court,
or the personal representative may be joined as a
defendant with notice to the probate court and
served in the pending action. Execution upon the
judgment in the case shall be stayed. If the
estate is, or shall be represented insolvent, the amount
of the judgment shall be included in or added as
a claim against the estate, subject to the
provisions of section 33-11-32, but shall not be
subject to appeal; and if the estate is solvent,
execution may issue at any time after claims of
the same class are payable.
33-11-45. Claim
barred by failure to prove. -- Claim barred by failure
to prove or
prosecute. -- If any creditor
whose claim has been disallowed or objected to shall not prove his or
her claim before the probate court as provided
in this chapter, he or she shall, unless otherwise
provided by law, be forever barred of his or her
action for those claims against the executor or
administrator. If a claimant shall not request
probate court determination of its disallowed claim
or bring civil action on its disallowed claim
within the deadlines of this chapter, any action on
said claim against the personal representative
and estate of the decedent shall be forever barred.
Affidavit of the personal representative or
certificate of the district or superior court clerk that no
civil action was brought by the claimant in the
relevant time period shall be sufficient to establish
failure to timely prosecute.
33-11-48.
Action on disallowed claim. -- Suit Civil action on
claims disallowed prior to
the expiration of six (6) months from first
publication may be brought in the district or superior
court depending upon the amount in controversy no later than thirty
(30) days after the expiration
of six (6) months from first publication, and suit
such civil action on claims disallowed after the
expiration of six (6) months from first
publication may be brought within thirty (30) days after
notice is given to the claimant that the claim
is disallowed or within thirty (30) days after said
disallowance is affirmed by the probate court,
whichever is later,
unless the estate has been
represented as insolvent or request that the
claim before the probate court has been duly filed;
and, unless otherwise authorized, suit on the
claim shall not be brought thereafter against the
executor or administrator. If, subsequent to the
expiration of the period in which suit such civil
action may be brought, the executor or
administrator personal representative shall represent the
estate as insolvent, a disallowed claim, on
which suit is barred by the foregoing provision of this
section, shall not be provable before the
probate court.
33-11-49.
Actions barred within time for filing claims. -- No executor or
administrator
personal representative shall be held to answer
to a civil action, by a creditor of the deceased
decedent, which is commenced within six (6) months from the
date of the first publication of the
notice of the qualification of the first executor
or administrator personal representative, unless the
suit is brought under the provisions of section
9-1-21, or other special provision made by statute.
33-11-50.
Limitation of actions by creditors of decedent. -- No executor or
administrator personal representative shall be
held to answer to the suit of a creditor of the
deceased decedent, except to a suit on his or
her the fiduciary's bond, or as is otherwise provided,
unless the suit is commenced within two (2)
years from the date of the first publication and before
any order of distribution has been made on the
estate of the intestate decedent.
SECTION 3. This
act shall take effect upon passage.
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LC01792/SUB A
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