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Executor’s Failure to Provide Notice to Creditors in Illinois Probate

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
May 1, 2020

This article asks the question “What happens if an executor or representative of an estate fails to provide notice of the decedent’s death to the decedent’s creditors?” We’ll also talk about what happens if the executor or representative has already distributed assets and a creditor files a claim.

As discussed in the article “Illinois Probate Claims Explained,” one of the duties of an executor or representative of an estate is to notify the potential creditors of the decedent’s estate. But what happens if the executor fails in this responsibility, intentional or otherwise? This legal situation often occurs when a claim is made after the 6-month window by a known creditor, and who did not receive a written notice and/or published notice, and whose claim is therefore not barred under the usual 6-month window.

Liability of the Representative or Executor

The Illinois Probate Act contains provisions that protect the representative from personal liability from failure to provide notice to the creditor if it is found that the representative acted in good faith in their attempt to notify the given creditor. If not outside the general statutory limitation of 2 years, or barred for any other reason, the creditor can still file a claim against assets in the estate or against assets distributed to a distributee. If all the assets from the estate have been distributed then the claim can be filed against those individuals who received the assets, and the claim’s legal reach would depend on the type of asset and how much was distributed. The claim cannot exceed the amount that the distributee would have been awarded from the estate. For example, if distributee A would have received $10,000 and distributee B would have also received $10,000 a claim exceeding $10,000 could not be levied against and paid for by distributee A even though the total amount award was $20,000.

What Happens if the Representative Distributes Payment Without Paying a Known Debt?

It is possible that an executor or representative could be held personally liable for claims that are not barred for any other reason if he or she distributes awards from an estate before paying known creditors. As a representative or executor of an estate, it’s very important to at the very least mail or deliver the initial notification of the decedent’s death and to publish a notification in order to reach unknown creditors. However, even if the representative does make a reasonable attempt to notify the decedent’s creditors he or she may still be personally liable if the estate is distributed and a known creditor files a claim after 6 months, but before two years stating they never received a notification. This type of scenario would likely end up in civil litigation. One way a representative or executor can protect themselves is to have all the beneficiaries sign a refunding agreement before distribution that lasts through the two-year statute.

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