Can a creditor file a lawsuit against a decedent? If so, how does she do so?
A close reading of G.L. c. 197, s. 9(a) indicates that, in order to “perfect” his claims against the estate in a timely manner, a typical creditor of a decedent (i.e., one other than MassHealth, the IRS, the DOR, etc.) must:
(1) BOTH (a) file suit against the executor/administrator of the estate AND (b) serve process with respect to that suit upon the executor/administrator within one year from the decedent’s date of death; OR
(2) BOTH (a) file suit against the executor/administrator of the estate AND (b) file the requisite notice of a claim against the estate with the proper Probate Court.
If you are the Executor / Administrator and a creditor contacts you, should you advised the creditor how to proceed?
The executor/administrator and his/her attorney have NO legal obligation to tell creditors what they must do to “perfect” their claims, and they could even be held liable (to the heirs/legatees) if they were to do so.
In most cases (i.e., where both the executor/administrator and all the heirs/legatees are siblings or comparably close family members), the family of the deceased will simply agree to pay his/her debts from the estate as a moral (not legal) obligation, regardless of whether or not the creditors properly “perfect” their claims. However, if they choose not to pay the creditor and you have advised the creditor how to proceed, the beneficiaries of the estate could potentially file an action again you for the amount of the claim and more.
