Santa Barbara, CA asked in Probate for California

Q: Probate estate's only asset is a home. Can a judgment creditor force the PR to sell the home to pay the creditor's claim

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3 Lawyer Answers
Kenneth V Zichi
Kenneth V Zichi
Answered
  • Estate Planning Lawyer
  • Howell, MI

A: They can 'force' payment of a claim if the claim is valid and the estate is 'solvent'.

They cannot force any specific action unless their claim is also covered by a lien against the home that allows for a forced sale.

I gather you want to keep the home but there is a judgment creditor looking for payment? You will either need to sell the home or mortgage it to get the cash needed to pay the debt. The remedy is up to you, but if the claim is legit, it has to be paid.

-- This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship.

I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice

Patricia Ann Simmons
Patricia Ann Simmons
Answered
  • Probate Lawyer
  • Vallejo, CA
  • Licensed in California

A: If there are insufficient liquid assets to pay the creditor claims, the real property may need to be sold or the personal representative may take out a loan against the property, with court approval, to pay off the creditor claims. Another alternative is to negotiate lesser amounts to be paid to each creditor.

You should immediately seek legal counsel to advise you of your options in this matter. This answer does not create an attorney-client relationship nor does it constitute providing you with any legal advice. This answer is solely for informational purposes.

Bruce Adrian Last
Bruce Adrian Last
Answered
  • Probate Lawyer
  • Pleasant Hill, CA
  • Licensed in California

A: While I generally agree with the answers bellow, a couple of points here.

They are both correct that the claim must be valid. This means the creditor must have followed the creditor's claim procedure and filed their claim with the court in the appropriate amount of time. (This depends on when letters issued and when the creditor received notice.) Also, the claim form must not contain any errors.

Next, the person representative must have accepted (agreed that the debt is owed) the claim. If the representative rejected or took no action, there is a second time limit in which the creditor must file suit, otherwise they loose the claim.

Finally, the claim must be a claim against the decedent, and the creditor's claim made not more than one year after the Decedent's death. Most creditors loose their rights to collect on a debt one year after the decedent dies. There are some exception, such as MediCal (not Medicaid) recovery and State and Federal taxes and certain other governmental claims.

The creditor's claim procedure can be a tricky course to navigate, so you should make sure to go over this with an attorney. If you don't know where to find one, your local county bar association probably provides an attorney referral service. The service places you in contact with a knowledgeable attorney who provides a short (half-hour to an hour, depeding on the program) consult for a nominal fee or for free.

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