What Does It Mean to File a Protective Order on an Estate?

By Tom Streissguth

An estate is an inventory of assets and property belonging to an individual. When a person dies, her personal property -- including homes, land, money, investments and business interests -- become part of an estate. Similarly, if you file for bankruptcy, your money and property become part of a bankruptcy estate, which is under the control of a bankruptcy court and a trustee. Beneficiaries, creditors or anyone else with an interest in the estate may file a motion for protective order.

Protective Order

A motion for protective order is a request to a court to issue a legally enforceable document -- the protective order -- that prevents a person or entity from taking a specified action. A protective order may, for example, bar the executor of a will from distributing assets of an estate until a certain financial issue is resolved. Protective orders are often used in bankruptcy to bar unsecured claims by creditors or the release of confidential or potentially harmful information. The "automatic stay" issued by the court at the start of a bankruptcy proceeding is a protective order that bars any collection activities by creditors against the debtor.

Procedures

The person who files a motion for protective order is known as the petitioner; the person who is the subject of the proposed order is the respondent. After the filing, the court will schedule a hearing, at which a judge will decide whether to grant or deny the motion. The court also has the authority to grant the protective order with limitations or for a limited time.

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Format and Service

States have different laws with regard to the format of motions for protective order. For example, in its statutes dealing with estate law, Arizona requires the name and address of the petitioner and anyone allegedly in need of protection by the court, as well as information about the estate and its value. The motion must be signed by the petitioner or his representative, and a copy delivered or served on the respondent within the time set by law.

Personal Representative

A petitioner may also file a protective order to safeguard the interests of an individual, often a minor, who has certain legal rights, such as the right to an inheritance from the estate of a person who dies without a will. The protective order is meant to ensure the individual has competent representation and is not left to the mercy of the court's directives and motions of attorneys representing other parties. A protective order may also prevent the executor of a will from distributing the assets of the estate before certain legal issues are resolved between the beneficiaries.

Bankruptcy

In bankruptcy, the court may issue a protective order to bar the public release of certain information, such as the details of a patent application that is part of the estate. A protective order may also bar claims against the estate by certain individuals, such as relatives, or entities who by law are not entitled to a claim against the estate. The protective order can ensure that the bankruptcy proceeds according to law without causing undue harm to the debtor.

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What Happens When a Creditor Is Sanctioned in a Bankruptcy Case?

References

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