Claims against probate estates are typically raised once the estate’s administrator sends notice to creditors. Within 60 days of the administrator’s appointment, she must issue and publish a notice to creditors, and mail notice to the estate’s creditors. The estate’s creditors then have 60 days to submit their claims to the administrator.
In Guerra v. Starnes, however, the creditor did not submit her claim to the administrator. Guerra filed a lawsuit against the decedent before the decedent’s death. After the death, Guerra obtained an order substituting the estate’s administrator as defendant in her lawsuit.
The administrator wrapped up the probate estate without sending the creditors’ notice to Guerra, and without resolving Guerra’s claim. The trial court held that Guerra’s failure to submit a claim resulted in a bar against the claim.
The administrator’s failure to send the creditors’ notice to Guerra was enough to set aside the trial court’s decision. Notice by publication is not enough if the creditor is “known” or “reasonably ascertainable.” If the creditor has a pending lawsuit against the decedent when she dies, then the creditor is reasonably ascertainable.
But the appellate court provided even further guidance. If a creditor’s lawsuit is pending at the time of the decedent’s death, the creditor can preserve the claim by timely requesting substitution of the administrator as defendant in place of the decedent, within 90 days after a notice of death is filed in the lawsuit, as provided by Section 2025 of the Oklahoma Pleading Code.
There is a chance, though, that no one files a notice of death under Section 2025. If the administrator sends the creditor in the pending lawsuit a notice to creditors, it is unclear whether the creditor must proceed with a notice of death and substitution, or submit a creditor claim, or both.
The court’s decision in the Guerra case leaves one issue unanswered. In paragraph 20, the court mentions “the tort case.” But the probate claims statute is directed toward claims arising in contract. In cases published in 1936 and 1938, the Oklahoma Supreme Court held that tort and equitable claims do not fall within the creditor claims statute. Guerra appears to be a tort claim that is based in contract. But a simple tort claim might fall outside the probate claims process altogether.