Intro to Probate: Notice to Creditors

Aurthur Fowler - 11/29/2015

A decedent’s property, except exempt property, is available to use to satisfy decedent’s just debts. In order to assert a claim, a creditor must file a claim against the estate. If the decedent died less than one year before the estate is opened, the personal representative must provide notice to creditors. If the decedent died more than one year after an estate is opened, T.C.A. § 30-2-306(e) waives any notice to creditors.Notice to creditors is a two-step process. First, within 30 days after the issuance of letters testamentary or of administration, the probate court will have a notice to creditors as set out in T.C.A. § 30-2-306 published in some newspaper of the county in which the estate was opened. If there is no newspaper published in that county, the notice to creditors is accomplished by written notices posted in 3 public places in the county, one of which is the usual place for posting notices at the courthouse.Second, the personal representative must mail or deliver by other means a copy of the notice to creditors that was published or posted to all creditors of the decedent of whom the personal representative has actual knowledge or who are reasonably ascertainable by the personal representative. In other words, if the personal representative knows of any creditors, either through personal knowledge or through inspecting the decedent’s mail, checkbook, or important papers, the personal representative must send these known creditors a copy of the notice to creditors that was published in the paper or posted. Although it is an additional cost, sending these notices through certified mail, return receipt is a good practice.The notice to creditors is important because it triggers the time in which a creditor can file a claim. A creditor has 4 months from the date of the first publication or posting of the notice to file a claim under T.C.A. § 30-2-307 unless the creditor falls under an exception. Once notice to creditors is published, it is difficult for a creditor to claim that its claim is not barred after the 4 months expires under an exception. T.C.A. § 30-2-307(b) provides that “the burden of proof on any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative, or as to whether actual notice was properly sent in accordance with § 30-2-306, shall be upon the creditor claiming entitlement to actual notice. In such cases, the distributees of the estate shall be personally liable on a pro rata basis if the court finds the claim is proper and the creditor did not receive the appropriate notice.”