Opinion
14-P-1024
06-02-2015
DELORES THIMOT v. MAUREEN SCOTT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Delores Thimot (petitioner) appeals from a decree of the Probate and Family Court dismissing her petition seeking the formal appointment of a personal representative for the estate of Lorraine Goyette. We affirm.
Background. The petitioner is the Executive Director of Kindred Transitional Care and Rehabilitation -- Country Estates (Kindred), where Goyette was a patient from April, 2012, until her death on August 16, 2012. Kindred claims that, at the time of her death, Goyette owed it $41,062.48 for services rendered, even though, as the judge found, Goyette had health insurance covering skilled nursing home care. Goyette's daughter and sole heir, Maureen Scott (respondent) disputes Kindred's claim.
On July 26, 2013, the petitioner, identifying herself as a creditor, commenced this action in the Probate and Family Court seeking the appointment of a personal representative for Goyette's estate, so that Kindred's claim against the estate could be pursued. The citation issued and was published in the West Springfield Record with a return date of August 23, 2013, more than one year after Goyette's death. On October 18, 2013, the respondent filed a motion to dismiss, claiming that the petitioner was not entitled to the appointment of a personal representative for the estate, because any claim that Kindred might have was time-barred. After hearing, the judge allowed the motion to dismiss, and this appeal ensued.
The petitioner apparently is acting on behalf of Kindred. The record does not reveal Kindred's form of legal entity or why the petitioner, rather than Kindred, filed the petition. As it makes no difference to our decision, we assume for present purposes that the petitioner and Kindred are functionally the same.
Discussion. A creditor of the deceased is an interested party under the Massachusetts Uniform Probate Code, see G. L. c. 190B, § 1-201(24), and, in appropriate circumstances, may request that a personal representative be appointed to administer the estate. See G. L. c. 190B, §§ 3-203(b)(1) and 3-614. However, a creditor's claim against the estate is subject to a short statute of limitations. The creditor's action must be commenced and served upon the estate's personal representative within one year of the date of the decedent's death. G. L. c. 190B, § 3-803(a). See G. L. c. 190B, § 3-804(1). The purpose of this short statute of limitations is to "expedite the settlement of estates." Gates v. Reilly, 453 Mass. 460, 466 (2009) (decided under a comparable provision of the prior Probate Code).
The petitioner contends that the statute of limitations does not apply in this instance, because no other interested person had petitioned the court to appoint a personal representative, and, hence, there was no one on whom Kindred could serve its claim. The flaw in this argument is that a creditor has both the wherewithal and the responsibility to protect its own interests, and the petitioner did not do so here. Despite knowing when Goyette died, the petitioner failed to seek the emergency appointment of a special representative against whom the claim could be served within the one-year period. See G. L. c. 190B, § 3-614. Instead, she waited until about three weeks prior to the expiration of the statute of limitations before filing her petition to appoint a personal representative, and failed to fulfill the notice requirements associated with the petition -- much less commence and serve a creditor's action -- within the one-year period.
To the extent that the petitioner also argues that she is not guilty of culpable neglect and, hence, the claim against the estate should be permitted to go forward despite the expiration of the statute of limitations, this appeal is not the proper vehicle for seeking such relief. See G. L. c. 190B, § 3-803(e).
In these circumstances, the judge did not err in concluding that the petition to appoint a personal representative was to no avail and should be dismissed.
Decree of dismissal affirmed.
By the Court (Rapoza, C.J., Cohen & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 2, 2015.