Grossman Law Firm Blog

The right way to sue a probate estate

It looks like one of Michael Jackson's former lawyers is suing his probate estate for $3 million.  It will interesting to find out if this attorney actually knows how to sue a probate estate.  Unlike a living person who can be sued quite easily, a claim must be filed with a probate estate before it is sued if the basis for the claim is the decedent (i.e. the person who died) owes a debt to the person suing.  This isn't true if the claim is the estate itself owes a debt (e.g. the executor breached a contract.)

Probate estates have been known to stop creditors cold.  If the creditor just plunges in by filing suit, that creditor will skip the necessary step of filing a claim with the probate estate.  If the claim isn't filed then the executor of the probate estate has a perfect defense.

If the executor knows the creditor (or potential creditor) exists then the executor should send that creditor a notice that informs them of the time they have to file a claim.  I have done this in a number of cases where the creditor didn't file a claim in time.  (I guess some people don't think the rules apply to them.)  When they finally filed they were astounded to find their claim was denied.  Some didn't file a claim and were surprised to find the probate had been closed.