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in Chapter 33-11 entitled "Claims Against Decedents' Estates" are hereby repealed.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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