Can You Probate an Unliquidated Claim Against an Estate?

July 1, 2014 § 3 Comments

The decedent, Buchanan, is killed in an automobile accident in which he is at fault. The other driver, Powell, is seriously injured and his vehicle is destroyed.

Buchanan’s widow opens his estate, and in due course it is closed after all the statutory formalities have been observed.

Before the statute of limitations on his tort claim has run, Powell files a petition to reopen the estate so that he can pursue his personal injury claim against it. The chancellor dismisses the petition, ruling that Powell should have probated his claim within the statutory 90 days from publication, and, since he did not do so and the estate was now closed, his claim was barred.

Was the chancellor correct?

The question arose in the case of Powell v. Buchanan, 147 So.2d 110 (Miss. 1962). The court first ruled that Powell’s action was, indeed, a personal action that survived the death of the decedent, and that such a claim may not be probated, citing  Bullock v. Young, 137 So.2d 777 (Miss. 1962).

So, if the claim survives the death of the decedent, but can not be probated, how does the plaintiff assert his claim? Here’s what the MSSC said (beginning at page 112):

The petitioner cannot sue until at least six months’ has expired from the appointment of an administratrix or executrix. The administratrix elects to close the estate as soon as possible after the six months. We do not believe the right of petitioner could be defeated in such manner. He had a right to present his claim in a court of law, and he had a right to present it against a representative of the estate. It was not necessary to undertake to surcharge the final account. When the petition was filed by the petitioner stating that he had an unliquidated claim against the estate and that the estate had been closed so he could not present it; and the petition showed his claim was not barred, then the chancellor should have appointed another administrator. The widow should have been appointed, or reappointed, if she desired to serve, but if she did not then the court should have appointed some other person to serve as such administrator. The petitioner was entitled to his day in court and in order that he might have it, the court, on his petition with a prayer for general relief, should have appointed another administrator. The administration had been closed with unfinished business pending, and with the petitioner under the law and our statutes yet having a right to present his cause of action in the proper court.

The case is therefore reversed and remanded with directions that an administrator be appointed in order that the unliquidated claim of the petitioner might be finally determined in the proper court. [Emphasis added]

This is one of those esoteric points that can elude even a well-travelled judge or lawyer. It’s a case worth filing away for future reference.

Thanks to Attorney Leonard B. Cobb.

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§ 3 Responses to Can You Probate an Unliquidated Claim Against an Estate?

  • Bob Wolford says:

    Judge- this is a very timely blog since I have just been retained to pursue a large sum of money against somebody on their death bed. The basis of the claim is money loaned to the dying person, so the claim appears to be “liquidated” in that I will be suing for an amount certain. My thinking is that I need to get the lawsuit filed and served upon the soon-to-be-deceased defendant so as to strengthen my claim against the estate. Am I correct in my thinking here, or would another approach be better? Thanks.

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