To enforce any property claim it is necessary for a personal representative of the estate to be appointed. Absent a personal representative there is no one to formally notice or enforce the claim against if the judgment is pursued.
If you know there is a Will not being probated, an action can be filed in the Superior Court to compel the production of a Will. N.J.S.A. 3B:3-29 enables the Court to compel discovery as to the existence of any paper purporting to be a Will which has not been offered for probate and require the papers be lodged with the surrogate for probate. Once the Will is probated, an action can be commenced against the estate to compel the sale of the house and collect the judgment. There are, however, other options that provide the creditor more control and ensure claims are paid in a timely fashion.
If there is no knowledge a Will exists, a creditor can request to be appointed as administrator under certain circumstances. Pursuant to N.J.S.A. 3B:10-2, if an heir of an intestate estate (i.e., an estate where there is no Will) does not claim administration within 40 days of the decedent’s death, the court may grant letters of administration to any fit person applying therefore. This includes a creditor of the estate. If the creditor is appointed, he or she will have the authority to sell the house and pay claims.
If the decedent was a non-resident of New Jersey (which may be the case if she passed away in California), N.J.S.A. 3B:10-8 provides that a creditor can be appointed as personal representative of the estate if an application for administration or probate is not pursued within 60 days of decedent’s death. This, too, would enable the creditor to sell the house and pay claims.
If the creditor is appointed as the personal representative of the estate, he or she would be responsible for administering the entire estate, which includes the settlement of all claims, payment of taxes and distribution of proceeds. Alternatively, the creditor can ask the court to appoint an independent party as personal representative to administer the estate. This will ensure the estate is handled effectively and impartially so all claims are addressed pursuant to their priority under the law.
The Elder Law Team at Mandelbaum Barrett is here to answer any questions you may have.