If an individual who owes you money and passes away the fact that there is no probate estate opened could be because he held his assets in a revocable trust which is a standard estate-planning tool to avoid probate, but does not impede creditors. A revocable trust is revocable throughout his life time and became irrevocable upon his death and his assets should be considered available for collection for any debt of his. However, in speaking with an attorney, there would need to be consideration of how to best proceed. The strategy could be to go after the trust and thereafter beneficiaries of that trust under the Uniform Fraudulent Transfer Act which is the state statute in New Hampshire that prevents people from transferring their assets when they owe money. The same statute would be used if that individual set up bank and investment accounts payable upon death to a relative by adding an individual to his joint bank. There is a joint bank account statute that allows the person to take the asset, but does not mean that the court would not consider a challenge to add that individual’s name to the account while the decedent while was alive and insolvent. This could be a transfer that is actionable under the Uniform Fraudulent Transfer Act.
Simply put if you are owed money from an individual who has not filed a probate and you think he had assets, speaking with an attorney for possible avenues to help recover those assets. A revocable trust, assets held in joint tenancy with rights of survivorship, or payable upon death-type accounts do not act as a fool proof bar of creditors actions. Depending on the size if the claim, it may be well worth proceeding with a claim against the individual(s) who received those assets upon the death of the decedent who owes you money.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].