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Inquest judge denies claim filed against a decedent’s spouse where there was no evidence that she had been appointed personal representative.  Rotwein v. Murray, 950 N.Y.S.2d 610 (N.Y. Dist. Ct. 2012) 


In Rotwein v. Murray, the District Court reviewed a case related to claim filed against an estate of a decedent for the payment of medical bills. Under EPTL, creditors have the right to file claims against the personal representative of an estate to seek payment of debt. EPTL § 11–3.1 

The decedent was a patient of the plaintiff who was a podiatrist. The decedent left an outstanding debt to the plaintiff of $12, 470.45. The plaintiff unsuccessfully demanded payment form the decedent’s widow. He then filed a claim against the decedent’s widow in her capacity as executor of the decedent’s estate. In the that lawsuit, the claim was for a lesser amount- $5,000. Although the defendant did not respond to the plaintiff’s attempt at service, the court determined that she had sufficient notice of the proceeding. However, because the defendant failed to appear, the court determined that an inquest was the appropriate way to proceed. An inquest is a hearing for the purpose of determining the amount of damages due on a claim. 

The court examined two issues. First, whether the decedent owed the plaintiff a debt of $5,000. Second, whether the defendant was liable for the debt. 

The question of whether the decedent was owed $5,000 was clear. The decedent owed the decedent at least $5,000. Whether the decedent was liable for the debt turned on whether the defendant was the decedent’s personal representative.  

Under EPTL § 11–3.1, when it comes to a claim owed by a decedent, the personal representative is the proper person to sue. The term personal representative is refers to the executor or administrator of an estate. One of the duties and responsibilities of the personal representative (also referred to as the executor or administration. 

New York law defines a personal presentative as the “person who has received letters to administer the estate of” the decedent. EPTL 1–2.13. This has been interpreted to include temporary administrators and preliminary administrators. 

However, even if a decedent nominates a person to serve as their personal representative and even if a person is legally eligible to serve as personal representative, there is a process to becoming a duly appointed personal representative. The first step is that the person must file a petition requesting that the Surrogate’s Court appointment and issues them letters of administration or letters testamentary. The court will then review the petition and make a decision. 

Interested parties such as beneficiaries and heirs have the right to object to a petition. If the objective is valid, the court will deny the petition. There are many reasons for denying a petition for appointment such as the petitioner being under 18 years of age, being a convicted felon, or being incompetent. N.Y. Surr. Ct. Proc. Act § 707. 

In Rotwein, the plaintiff did not produce evidence that the defendant had been appointed personal representative or that she event submitted a petition for appointment. The court also points out that there are option for a claimant in situations where there is a delay in opening a probate case or appointing a personal representative. By dismissing the plaintiff’s case without prejudice, the court allows the plaintiff to reevaluate his strategy for pursuing a claim against the decedent’s estate. 

While generally the surviving spouse of a decedent serves as personal representative, it is not always the case. If the decedent was intestate—meaning that they did not leave a will, then the surviving spouse would have first priority in being appointed personal representative. However, the surviving spouse could decline. This would allow others such as the decedent’s children, siblings, or parents to have the right to petition the court for appointment.  

Once someone is appointed, they must follow New York’s rules related to addressing claims against the estate. The personal representative must give notice of the claims period and must pay timely filed, valid claims to the extent there are assets in the estate to do so. 

If you have a claim against the estate of a decedent, our experienced New York probate attorneys can help ensure that your claim is timely filed so that you can receive the money that is owed to you. 



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