What happens if a creditor files a claim after the 90-day notice period ends?

Short answer: Under Virginia probate practice, a creditor who files a claim after the statutory notice period is frequently barred from collecting from the estate, but there are important exceptions and remedies. Whether a late claim is allowed depends on how notice was given, whether the creditor had actual notice earlier, whether the claim was contingent or unknown, whether the court finds “excusable neglect,” and whether the personal representative already distributed estate assets without reserving funds.

Detailed answer — how late creditor claims are handled in Virginia

This answer explains the common rules that apply in Virginia probate matters. It is a general explanation only and not legal advice.

1. Why the 90-day notice matters

When someone dies and a personal representative (executor/administrator) opens probate in Virginia, the representative must notify known creditors and usually publish notice to unknown creditors. Statutory notice periods exist to give creditors a limited time to present claims so the estate can be settled and distributed. If a creditor does not present a timely claim, the estate and its beneficiaries are generally protected from late claims.

2. Consequence of filing after the 90-day period

If a creditor waits until after the applicable notice period has expired, the probate court will often consider the claim barred. In practice, that means the estate does not have a legal obligation to pay the claim from estate assets if the personal representative and beneficiaries act in good faith and follow the statutory notice process.

3. Common exceptions and reasons a late claim may be allowed

• Actual notice: If the creditor received actual, timely notice of probate (for example, mailed notice to a known creditor), the time to present a claim often starts from that actual notice. If the creditor can show they had actual notice later or that the representative failed to give required notice, that can affect timeliness.
• Claims that arose after death or were contingent: Some claims do not exist or could not reasonably be presented within the original period (for example, an insurance claim that ripened later). Courts may permit such claims.
• Excusable neglect or lack of knowledge: If the creditor can show a valid excuse for the delay (serious illness, postal error, misleading statements by the personal representative), the court may allow a late claim in its discretion.
• Personal representative distributed assets without a reserve: If the personal representative distributes estate assets and does not reserve funds for unknown claims, a valid but late-presented claim may shift liability to the personal representative personally unless the representative followed proper procedures and had court approval for distribution. In other words, handing out funds too soon can create personal liability for the representative.
• Court approval after notice defects: If the notice was defective (e.g., not published correctly or not mailed to a known creditor), a creditor may be allowed to present a late claim after the court cures the notice defect.

4. What happens procedurally if a late claim is filed

1. The personal representative typically objects to the claim in writing and may ask the court to disallow it as untimely.
2. The creditor can respond and ask the court to allow the claim, presenting evidence of excusable neglect, lack of proper notice, or other grounds for relief.
3. The court decides whether to allow, disallow, or partially allow the claim and may order payment, deny recovery, or require that the representative be held personally responsible in certain situations.

5. Practical consequences for beneficiaries and personal representatives

Beneficiaries who received distributions may have those distributions reduced or may have to return funds if a previously unknown, allowed claim is proven and the estate still has assets to satisfy it. A personal representative who distributes assets without protecting the estate from unknown claims may face personal liability or be required to reimburse the estate.

6. Where to look in Virginia law

Virginia’s probate and fiduciary statutes set out notice and claims procedures. For the statutory framework and specific rules that apply in a particular case, consult Title 64.2 of the Code of Virginia: https://law.lis.virginia.gov/vacode/title64.2/. The local circuit court clerk’s office can also explain the clerk’s procedures for filing and objecting to claims.

If you are a creditor who missed the 90-day deadline

1. Act immediately. File the claim and also file a motion or affidavit explaining why you missed the deadline.
2. Collect documentation showing excusable neglect or that you lacked actual notice (medical records, mail receipts, communications with the personal representative).
3. Talk to the personal representative and the probate court clerk about the right procedure; consider filing a petition with the court to have the claim allowed.
4. Consult a probate attorney early. An attorney can evaluate whether you have a valid basis to ask the court to accept the late claim.

If you are the personal representative

• Do not distribute the entire estate until the claim period has passed or until you have taken steps to protect the estate (for example, obtaining a court order approving a distribution or retaining a reserve for potential claims).
• If a late claim arrives, object promptly and ask the court to disallow it if you believe it is untimely. Preserve records of the notice you gave to known creditors and of newspaper publication.
• Seek legal advice about whether to settle a disputed late claim or litigate. Settling may be less expensive if the claim is uncertain but sufficient assets remain.

Helpful Hints

• Keep careful records: mailings to known creditors, affidavits of publication, and dates of service. Documentation is essential if timeliness is later contested.
• When in doubt, file sooner. Filing a timely claim preserves rights; waiting increases the chance of being barred.
• If you are a personal representative, consider holding back a modest reserve until the statutory period expires or get a court order to distribute with a release for future claims.
• Use the Virginia Code online (Title 64.2) to review probate timing rules: https://law.lis.virginia.gov/vacode/title64.2/.
• Contact the circuit court clerk in the county where probate is pending for local filing rules and for a copy of the estate’s docket.
• Consult a Virginia probate attorney if a late claim is material to the estate’s value, if distributions were already made, or if there was defective notice.

Disclaimer: This article is for general informational purposes only and does not provide legal advice. Laws change and outcomes turn on precise facts. For advice tailored to your situation, consult a licensed attorney in Virginia.