CONTESTING PROBATED CLAIMS IN AN ESTATE
October 19, 2010 § 4 Comments
Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate. The statute requires notice to the claimant and a hearing.
This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time. Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.
At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate).
The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.
Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.
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Is there a set time for the executor to respond to a claim other than before attempting to close the estate? I have an estate in which the decedent executed a personal guarantee for a loan by an LLC that he owned along with other persons. The guarantee by each member was for the entire amount of the loan and the loan is not delinquent. The loan is close to maturity (balloon type mortgage) and the LLC is working to obtain a new loan, without personal guarantees and pay off the first loan. Can the executor wait for the LLC to pay off the loan and then contest the claim?
As far as probate law is concerned, you may ask the court at any time to adjudicate the contested claim. I recommend a R81 summons to do that.
As far as contract and law of guarantee, you may be risking losing your contest if you wait for the refinancing, but someone else will have to answer that question for you. I don’t know without researching it.
[…] Contesting probated claims. […]