Lying in Wait

April 13, 2017 § Leave a comment

You represent the estate. A creditor timely probates a substantial claim against the estate. You study the claim and realize that it is meritorious. So, should you just go ahead and pay it? After all, MCA 91-7-155 directs that executor to “speedily pay” the probated claims.

There is another option. Professor Weems describes it:

One might conclude that if a creditor validly probates his or her claim, the creditor would not have to do anything else to protect it, but this is not always the case. The administrator may, through deliberation or procrastination, fail to pay the claim. If the administrator does not pay it, the creditor may have to take judicial action to compel payment. Administrators may not be sued for 90 days after taking office [MCA 91-7-239], and there is a four-year statute of limitations with regard to the action against administrators to recover claims against their decedent [MCA 15-1-25]. Consequently, actions to compel payment of such claims must be brought within four years and 90 days of the qualification of the administrator, even though the claim may have been probated. [Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958 (1918); Toler v. Wells, 158 Miss. 628, 130 So. 298, 300 (1930)].

Weems, Wills and Administration of Estates in Mississippi, 3d Ed., § 2.31.

What about MCA 91-7-153, which states that registration of a probated claim, ” … shall stop the running of the general statute of limitations as to such claim …” Doesn’t that insulate the creditor from operation of MCA 15-1-25? No, I don’t think so, because MCA 91-7-153 specifically refers to the “general statute of limitations,” which is MCA 15-1-49, as opposed to the more specific MCA 15-1-25.

An interesting side note arises from the Toler case. There, although the administrator acknowledged the debt and promised to pay it, he was not later precluded from asserting the four-year and 90-day statute of limitations.

So, if you represent a creditor with a probated claim, you would do well to set the matter for hearing at an early date some time after the administrator has been qualified for more than 90 days. Get an order of the court for the administrator to pay the claim and then you can rest easy. The estate can not be closed unless and until the claim is paid. Don’t rely on MCA 91-7-155; the duty imposed by the statute must be enforced by the creditor.

On the other hand, if you represent the estate, you just might, “through deliberation or procrastination,” find it best to lie in wait.

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