How to collect unpaid condo fees where owner has deceased and unit is being sold?
Full Question:
Answer:
Typically, in order to pass title of a decedent's property to a new owner, the representative of the estate will use an executor's deed or fiduciary's deed. A special warranty deed limits the liability of the grantor by warranting only what the deed explicitly states. A special warranty deed has practically the same effect as a quitclaim deed. Special warranty deeds are generally used by corporations or other entities that want to avoid assuming the liability of a general warranty deed. Like the general warranty deed, the special warranty deed should contain the appropriate language such as "conveys and specially warrants." Usually, the grantor warrants that he or she did nothing to impair title during the period the grantor held the title. While a special warranty deed may contain covenants of title, these covenants will usually cover only those claims arising by, through, or under the grantor.
If a lien has been filed, depending on the contract terms and the other secured parties involved, it may be possible to foreclose on the property. An alternative to foreclosure is to file a claim against the decedents estate. The estate representative is responsible to pay the claims against the estate before distributing remaining assets to the heirs. The court will issue an order after the probate of the estate is opened, specifying when claims must be filed. The representative is required to give notice to known creditors of their timeframe for filing a claim against the estate. I suggest contacting a local attorney who can review all the facts and documents involved.
The following are WI statutes:
859.01 Time for filing claims.
When an application for administration is filed, the court, or the probate registrar under informal administration proceedings, shall by order set a date as the deadline for filing a claim against the decedent's estate. The date shall be not less than 3 nor more than 4 months from the date of the order. If a claim is not filed by the deadline, the consequences provided in s. 859.02 apply. 859.02 Limitation on claims.
(1) Except as provided in sub. (2) and s. 859.03, all claims against a decedent's estate including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, are barred against the estate, the personal representative and the heirs and beneficiaries of the decedent unless filed on or before the date set under s. 859.01.
(2) A claim against a decedent's estate that is not filed on or before the date set under s. 859.01 is not barred if:
(a) It is a claim based on tort, on a marital property agreement that is subject to the time limitations under s. 766.58 (13) (b) or (c), on Wisconsin income, franchise, sales, withholding, gift or death taxes, or on unemployment insurance contributions due or benefits overpaid; a claim for funeral or administrative expenses; a claim of this state under s. 46.27 (7g), 49.496 or 49.682 or rules promulgated under s. 46.286 (7); or a claim of the United States; or (b) All of the following circumstances exist: 1. On or before the date set under s. 859.01, the personal representative knew, or in the exercise of reasonable diligence should have known, of the existence of the potential claim and of the identity and mailing address of the potential claimant. 2. At least 30 days prior to the date set under s. 859.01, the personal representative had not given notice to the potential claimant of the final day for filing his or her claim and the court in which the estate proceeding was pending. 3. At least 30 days prior to the date set under s. 859.01, the claimant did not have actual knowledge that the estate proceeding was pending and of the court in which that proceeding was pending. (2m)(a) A claim based on a tort is subject to s. 859.45.
(b) A claim of a creditor without notice is subject to s. 859.48. (3) Failure of a claimant timely to file a claim against a decedent's estate does not bar the claimant from satisfying the claim from property other than the decedent's estate.
859.07 Notice; publication.
**Update Notice: This Section has been amended by 2007 WISCONSIN ACT 20 (Part D)
(1) Notice of the deadline for filing a claim under s. 859.01 shall be given by publication, under s. 879.05 (4), and may be given with the notice for granting letters. The first insertion shall be made within 15 days of the date of the order under s. 859.01.
(2)(a) The personal representative shall provide notice of the date set under s. 859.01 to the department of health and family services or the department of corrections, as applicable, and to the county clerk of the decedent's county of residence, as defined in s. 49.001 (6) if, at any time prior to or at the time of the decedent's death, any of the following applied:
1. The decedent was a patient or inmate of any state or county hospital or institution.
2. The decedent was responsible for any obligation owing to the state or a county under s. 46.03 (18), 46.10, 48.36, 301.03 (18), 301.12, or 938.36.
3. The decedent or the decedent's spouse received the family care benefit under s. 46.286, medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7), or aid under s. 49.68, 49.683, or 49.685.
(b) The notice under par. (a) shall comply with all of the following:
1. The notice shall be in writing on forms provided by the applicable department or county clerk.
2. The notice shall be sent by registered or certified mail not less than 30 days before the date set under s. 859.01.
(3) The personal representative may at any time give notice to any potential claimant of the deadline for filing a claim against the estate under s. 859.01 or 859.48 and of the court in which the estate proceeding is pending.
859.13 Form and verification of claims.
(1) General requirements. No claim shall be allowed unless it is in writing, describes the nature and amount thereof, if ascertainable, and is sworn to by the claimant or someone for the claimant that the amount is justly due, or if not yet due, when it will or may become due, that no payments have been made thereon which are not credited, and that there are no offsets to the knowledge of the affiant, except as therein stated. If the claim is one for which property is available under s. 859.18, the claim shall describe which classification under s. 766.55
(2) is applicable to the claim. The claim shall also show the post-office address of the claimant. The presumption under s. 766.55 (1) applies to the classification of claims for which property is available under s. 859.18. (2) Requirements when claim founded on written instrument. If a claim is founded on a written instrument which is available, the original or a copy thereof with all endorsements must be attached to the claim.
859.19 Secured claims.
(1) When a creditor holds any security for a claim the security shall be described in the claim, and the judgment allowing the claim shall describe the security. The security is sufficiently described if the security document is described by date and by the recording or filing data.
(2) Payment of the claim shall be upon the basis of:
(a) The full amount thereof if the creditor surrenders the security; or
(b) If the creditor realizes on the security before receiving payment, then upon the full amount of the claim allowed less the fair value of the security.
