rule 87 actions by and against executors and administrators by valmonte

RULE 87

ACTIONS BY AND

AGAINST

EXECUTORS AND

ADMINISTRATORS

SECTION 1

Actions which may and

which may not be brought

against executor or

administrator.

ACTIONS THAT MAY BE BROUGHT DIRECTLY

AGAINST THE EXECUTOR AND ADMINISTRATOR:

Recovery of real/personal property or any

interest therein from the estate.

Enforcement of a lien thereon.

Action to recover damages arising from tort.

ACTIONS THAT MAY NOT BE BROUGHT AGAINST

EXECUTOR OR ADMINISTRATOR:

Claims for the recovery of

money

debt

interest

SECTION 2

Executor or administrator

may bring or defend actions

which survive.

ACTIONS MAY BE BROUGHT BY THE EXECUTOR

OR ADMINISTRATOR

Recovery or protection of the property or rights

of the deceased, action for causes which

survive.

SECTION 3

Heirs may not sue until

share assigned.

HEIRS MAY NOT SUE UNTIL SHARE ASSIGNED

Before distribution is made or before any

residue is known, the heirs and devisees

have no cause of action against the executor

or administrator for recovery of the property

left by the decedent.

SECTION 4

Executor or administrator may

compound with debtor.

EXECUTOR OR ADMINISTRATOR MAY

COMPOUND WITH DEBTOR

With the approval of the court, an executor or

administrator may compound with the debtor

of the deceased for a debt due, and may give

a discharge of such debt on receiving a just

dividend of the estate of the debtor.

SECTION 5

Mortgage due estate

may be foreclosed.

There is no need of a

special authority from

the court for the

administrator or

executor to bring an

action for foreclosure

on behalf of the estate.

SECTION 6

Proceedings when property

concealed, embezzled, or

fraudulently conveyed.

GENERAL RULE: (SEC. 6)

The probate court has no

authority to decide

whether or not the

properties belong to the

estate or to the person

being examined since

probate courts are courts

of limited jurisdiction.

Exceptions:

Provisional

determination of

ownership for inclusion

in the inventory;

Submission to the

court’s jurisdiction.

SECTION 7

Person entrusted with estate

compelled to render

account.

SECTION 8

Embezzlement before

letters issued.

EMBEZZLEMENT BEFORE LETTERS ISSUED

The responsible person shall be liable to an

action in favor of the executor or

administrator of the estate for double the

value of the property sold.

SECTION 9

Property fraudulently conveyed

by deceased may be

recovered. When executor or

administrator must bring

action.

REQUISITES: (SEC. 9)

1. Application of the creditors;

2. Payment of cost and expenses; and

3. Give security therefore to the executor or

administrator.

SECTION 10

When creditor may bring action.

Lien for costs.

REQUISITES FOR CREDITOR TO FILE ACTION

1. There is a deficiency of assets in the hands of an

executor or administrator for the payment of debts

and expense of administration;

2. In his lifetime, the deceased had made or

attempted to make a fraudulently conveyance of

his property or had so conveyed such property

that by law, the conveyance would be void as

against his creditors;

3. The subject of the attempted conveyance would be

liable to attachment in his lifetime;

4. The executor or administrator has shown no desire

to file the action or failed to institute the same within

a reasonable time;

5. Leave is granted by the court to the creditor to file

the action;

6. A bond is filed by the creditor;

7. The action by the creditor is in the name of the

executor or administrator.

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