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How Long Do Creditors Have to Make a Claim Against an Estate

Ann H. Larkin
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Many people assume that creditors have one year from the date of death to make a claim against an estate. However, in Virginia, unlike most states, there is no set time by which creditors must make a claim. It is up to the personal representative of an estate (known as an “executor” if the person had a will and an “administrator” if the person had no will) to create a deadline by initiating a process commonly called “Debts and Demands.”

A decedent’s heirs are entitled to written notice that a person has died and that a probate administration has been initiated. If a deceased person (a “decedent”) dies with a will that disinherits a spouse or minor children, or dies without a will and has descendants who are not children of the surviving spouse, claims against the estate are often filed by family members to whom the decedent owed a duty of support under the law. Such claims are called “claims for allowances.” There are four types, depending on the basis of the claim and the relationship of the person making it to the decedent. Each of these claims must be filed within a certain period of time following the decedent’s death or the qualification of a personal representative, generally between 6 months and 1 year.

There is no requirement for a personal representative to notify any other creditors of the decedent’s death or of the personal representative’s appointment. Also, unlike most states, in Virginia there is no deadline for creditors to make claims against an estate other than the normal statute of limitations for a given debt. Depending on the type of debt, different statutes of limitations apply (5 years for credit card debts or other debts based on written contract, 4 years for auto loan debt, and 10-20 years for judgments). The statute of limitations for a given debt is suspended from the date of death to the date an estate is opened. The only way for a personal representative to shorten the statute of limitations on claims against an estate and to create a deadline for the filing of creditor claims is for the personal representative to request that the Commissioner of Accounts hold a “Debts and Demands” hearing. The personal representative must then give written notice to any creditors whose claims the personal representative disputes, and have an ad published in the newspaper notifying all creditors that they must notify the administrator and/or the Commissioner of Accounts of their claim, in writing, by the date of the hearing. If the disputed creditor does not appear at the hearing, and no claim has been filed, the disputed debt will be discharged.

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Written By Ann H. Larkin

Shareholder

Ann H. Larkin is a Shareholder at Midgett Preti Olansen. She focuses her practice on estate planning, estate and trust administration, special needs planning and guardianship and conservatorship matters. Ms. Larkin is certified by the Virginia Supreme Court as a guardian ad litem for incapacitated adults.

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