[WSBAPT] Creditor's Claim question

Thu Feb 4 10:40:35 PST 2021

Thanks so much for the responses!  This is really helpful.  I don't think there will be an issue with the breach of fiduciary duty here (thank goodness), but I need to let my future personal representatives know not to do this!

Candace

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Stephen Brandli
Sent: Thursday, February 4, 2021 8:27 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor's Claim question

To add to the below, post-death charges incurred by the administrator on an account for which the decedent is liable would not be subject to the "notice to creditors" statute of limitations.  Also, the administrator may have breached his or her fiduciary duty by incurring charges on an account for which the decedent is liable.

                Steve

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Joshua McKarcher
Sent: Wednesday, February 3, 2021 5:25 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Creditor's Claim question

Candace,

There may be many aspects of law intersecting here - including but not limited to who is the "main" account holder with liability vs. who are simply authorized cardholders whose usage creates liability for the "main" cardholder - but to limit myself to probate law, it may be as simple as this: if one of your Administrators knew of the account and did not give actual notice to the creditor, the creditor's claim is not barred by publication notice (or the two-year SOL given that it's been 1 year since decedent's death).

I infer from your email that the account was somewhat "unknown" to you (even though it logically couldn't have been unknown to one of the Administrators). The Administrator had a duty to give actual notice to the creditor, so the failure to do so means the creditor is not barred.

If that is correct, then it seems time to decide who is liable for which charges, serve actual notice, or just pay the thing off and move on with life. If they were served actual notice and did not file a claim, then I suppose the question is whether the Administrator is the actual "main" account holder with liability (or other considerations).

Good luck! Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Candace Wilkerson
Sent: Wednesday, February 3, 2021 1:53 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Creditor's Claim question

Hi all,

I've never run into this issue before, surprisingly, and it's not part of my instructions when I communicate with my personal representative clients at the beginning of a probate case.  (It will be in the future, though.)

I have a probate with a creditor's claim period that expired in late November.  I just received a call from a collection agency planning to file a claim for a credit card account opened by the Decedent (who died in January 2020).  I explained that the creditor's claim period had expired, and therefore most likely we will be rejecting their claim.  However, I was informed that there was more than one authorized user on the account, and that the card continued to be used by one of those users up until the end of last month.  Turns out, that authorized user is one of my Administrators of the estate.  I haven't confirmed this yet, but will be receiving the statement soon from the collection agency.

So I would assume, if this information is confirmed, that we can't reject the claim as a whole at this point.  Maybe we could reject it in part, up to the balance amount accrued by the Decedent?  Any thoughts or case law would be appreciated.

Thanks!

Candace Wilkerson

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