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Estate, Powers and Trusts, § 12-2.1: Action Not Impaired by Failure of Creditor or Other Person to Present Claim to Representative as Prescribed by Law

When preparing estate plans, while we give careful consideration as to what happens to our property upon our death, many people do not consider what happens to our debts upon our death. The short answer is that during probate debts are paid out of estate assets. In fact, according to New York estate law, estate debts must be paid before beneficiaries are paid. To make sure that creditors are paid first, executors and estate administrators typically publish a notice to alert creditors of the death and of the probate proceeding. This allows creditors the opportunity to file claims against the estate assets. According to New York Estate, Powers and Trusts, § 12-1.1, Action not impaired by failure of creditor or other person to present claim to representative as prescribed by law, even if a creditor fails to file a claim with the executor, the creditor still has to the right so seek payment from distributed estate assets. To learn more about how estate debts are paid, contact an experienced New York estate administration lawyer.

Filing a claim against an estate

New York law requires that a creditor file a claim against an estate within 7 months from the date that the Surrogate’s Court issues “Letters” to the executor of estate administrator. The “Letters” is a document that gives the executor or estate administrator authorization to take control of a deceased person’s estate and wind up his (or her) affairs. Of the many duties of the executor is to pay estate bills. However, before he (or she) can pay estate bills, he must first inventory the estate, secure estate property, and appraise it. It is essential that the executor understand what property is included in the estate and the value of the property in the estate before he can pay claims and distribute assets.

As an estate administrator in New York will explain, in order for an executor to be held responsible for paying a claim, New York law requires that creditors file claims within 7 months for when the Letters are issued. Pursuant to Estate, Powers and Trusts, § 12-2.1, Action not impaired by failure of creditor or other person to present claim to representative as prescribed by law, a creditor will not be barred from pursuing a claim after the 7 month period (as long as the statute of limitations for the claim has not expired). However, after the 7 month period the executor cannot be held personally liable for failing to pay the debt. On the other hand, a fiduciary must pay claims that he know about or should have known about if there are sufficient assets in the estate, even if the creditor does not file the claim until after the 7 month period.

However, after the 7 month period, the executor may have begun the process of distributing assets to beneficiaries or heirs. As a result, there may not be any assets left in the estate to pay the creditor, even if the debt is valid. As a New York estate administration lawyer will explain, the only option left for the creditor may be to pursue payment from the beneficiaries or heirs who now own property that was formerly part of the decedent’s estate. In other words, a creditor has the right to file a claim against beneficiaries for the amount of the debt. However, the maximum amount the creditor can recover from a distributee is the amount that the distributee received from the estate, even if it is less than amount owed to the creditor.


Creditor A and Creditor B filed claims against Mary’s estate immediately after Letters were issued to Mary’s executor, Sally. Mary’s estate included $50,000 in liquid assets and $25,000 in other personal property such as jewelry and home furnishings. Creditor A’s claim was for $35,000, and Creditor B’s claim was for $20,000. Sally used the liquid assets in the estate to pay Creditor A and Creditor B. She also sold some of Mary’s jewelry to pay the creditors. Since no other creditors filed claims, Sally distributed the remaining property to the sole beneficiary, Karen. Creditor C came forward and filed a claim for $40,000 right after Sally distributed the estate to Karen. Because there were no assets remaining in the estate Creditor C demanded payment from Karen. Creditor C was only able to recover $15,000 from Karen after Karen sold the property she inherited from Mary.

Related Statutory Provisions
  1. Extent of liability; judgment debtor’s right to indemnity and contribution: Estates, Powers and Trusts, § 12-1.3
  2. Action may be joint or several: Estates, Powers and Trusts, § 12-2.2
  3. Effect of judgment: Estates, Powers and Trusts, § 12-2.4
Estate, Powers and Trusts, § 12-2.1. Action not impaired by failure of creditor or other person to present claim to representative as prescribed by law

The failure of the plaintiff to present his claim to the personal representative as prescribed by law shall not impair his right to maintain an action against distributees or testamentary beneficiaries under this article;  but nothing contained herein shall extend the time limited for the commencement of an action to enforce plaintiff's claim.

Contact the Law Offices of Stephen Bilkis & Associates

If you have concerns related to debt owed by an estate, discuss your concerns with an experienced estate administration lawyer serving New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience successfully representing clients in complex estate matters and estate litigation. We are here to help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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