If Your Judgment Debtor Dies With A Will
I am not an attorney, I am a Judgment and Collection Agency Broker
. This article is my opinion, from my experience in California, and laws vary in every state. If you want a strategy to use or legal advice, please contact an attorney.
Probate is a type of court with a hearing and a process, to verify and oversee the change of asset ownership after a person dies.
Some people having assets think that if they have completed a will, when they die, everything automatically goes to the beneficiaries as they specified. When the value of their estate is small, this could happen.
If the value of an estate is substantial, probate court is usually involved, unless the deceased had their assets with a living trust (or perhaps another type of trust).
When a living trust is correctly formed, it can sidestep probate court, as trusts prove the ownership titles of its assets listed, so most times no probate court decision is required.
Persons who die with their assets in a living trust that is correctly formed, usually can keep the estate out of probate and the public's eye. The heirs can inherit assets without the public knowing who got what.
When someone owning assets (not in a trust) dies, with or without a valid will, the assets usually needs to go through probate court before anything is passed on to the intended heirs.
Just because a will reads that Bob gets the condo and Jenny gets the BMW, doesn't mean that the day after dad passes away, Bob and Jenny automatically and immediately get possession of the items listed in the will.
First, it must be proven in court, that the assets dad left his kids in the will is owned by dad free and clear. The named executor in the will, administers the estate in probate court and beyond, until all liabilities, assets, and considerations have been handled.
If the executor listed in the will is not available or specified, the probate court will appoint one. The probate court verifies that all known creditors have achance to get paid, and that the decedent really owns the assets named in the will. Lastly, the assets get dispersed to the heirs.
Probate court records are part of the public record. Anyone can go into a probate court and inspect probate records for any dead person, including celebrities.
Even when the decedent's estate is small, probate proceedings sometime occur when there is a dispute over something with little intrinsic value. Examples might be sentimental items, ashes of the deceased, the way a retirement plan should be split, etc. Many probate cases involve substantial assets. However, a judgment creditor may do well to quickly determine the estate's value. The creditor should determine if there might be sufficient assets to at least partly satisfy the judgment. If there are, then a creditor's claim should be filed quickly. (The executor often has 4 months to allow or deny the claim.)
If there appears to be enough assets to pay your claim, ask the executor or representative to do it quickly. The reason to do this is because assets can vanish to family members, who have little interest in paying a creditor of the decedent.
If you are a judgment creditor of the decedent, it's your right to request a listing of the estate's liabilities and assets, either from the probate court (if it was already filed there) or the attorney of the executor if it was not.
If your judgment creditor's claim is denied without a good cause, you could start an adversarial action in probate court. You should know what you're doing if you represent yourself. Many judges in the probate courts have very little patience for non-related self-represented parties that do not know what they are doing.
by: Mark Shapiro
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