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41 Real Prop. Prob. & Tr. J. 819 (2006-2007)
Remembering the Creditor at Death: Aligning Probate and Nonprobate Transfers

handle is hein.journals/rpptj41 and id is 829 raw text is: REMEMBERING THE CREDITOR AT DEATH: ALIGNING PROBATE AND NONPROBATE TRANSFERS Elaine H. Gagliardi* Editors' Synopsis: As more people choose to avoid the cost and time involved with probate administration by using nonprobate transfers, creditors of decedents face increased procedural challenges and practi- cal difficulties in collecting debts. In this Article, the author proposes legislative reforms that would unify the creditor claims procedure for probate and nonprobate transfers when beneficiaries are unwilling to pay claims. The author argues that a more unified claims procedure would still allow efficient passage of property at death and would encourage fair treatment of all beneficiaries and creditors. I. INTRODUCTION ..................................... 821 II. THE PLIGHT OF CREDITORS IN A FRAGMENTED SYSTEM ........................................... 823 A. Examples of Procedural Hurdles ..................... 823 B. Policy Implications of Procedural Hurdles .............. 826 III. PROBATE PROCEDURES FOR RESOLUTION OF CREDITOR CLAIMS ................................. 829 A. The Uniform Probate Code .......................... 829 B. General Procedure for Filing and Paying Creditor Claims.. 831 C. Purpose of the Creditor Claims Procedures ............. 835 D. Property to Which Probate Procedures Apply ........... 836 E. Claims Subject to Presentment ....................... 837 F. Notification of Creditors and Time for Presentation of C laim s .......................................... 840 G. Applicability of One-Year Limitation Period to Nonprobate Transfers ........................................ 847 H. Personal Representative Duties and Choices ............ 848 Professor of Law, The University of Montana School of Law. Also, formerly practiced with the law firms of Day, Berry and Howard, Hartford, Connecticut, and Perkins Coie, Seattle, Washington; and served as Chair of the Montana State Bar Business, Estates, Trust and Real Estate Section and Chair of the ABA Real Property, Probate and Trust Section Task Force on the American Indian Probate Reform Act. The author expresses sincere gratitude for the guidance and comments of Professors David English, J. Martin Burke, and Charles Willey.

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