Blogs from May, 2012



            As is often the case, people pass away with a debt owed to another person or entity.  When this occurs, the proper manner for a creditor to collect on such a debt is to file a Statement of Claim in the decedent’s estate pursuant to Fla. Stat. §733.703.  The primary time limitation that creditors must be wary of stems from Fla. Stat. §733.702, which states that the claim must be filed within three (3) months after the time of the first publication of the notice to creditors (which is published by the personal representative near the commencement of the estate administration) or, if the creditor is a known and/or reasonably ascertainable creditor, thirty (30) days after being served with the notice to creditors.  Typically, the proper person to file an objection to any such claim is the personal representative.  However, under the Florida Probate Code, any interested person in the estate, whether a beneficiary or another creditor, may also file an objection to a filed claim.

            Fla. Stat. §733.705 describes the procedure of paying and objecting to claims that are filed in an estate.  In regards to objections, the statute states as follows:

(2)   On or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later, a personal representative or other interested people may file an objection to a claim. 

An “interested person” under the Florida Probate Code is one who may be reasonably expected to be affected by the outcome of a particular proceeding involved.  Of course, a beneficiary or a creditor of an estate would come under this definition and have the authority to file an objection to a filed claim.  This often occurs when a beneficiary or creditor does not believe that the personal representative has been performing his or her duties diligently and in the best interest of the estate and/or if there is a suspicion of a conflict of interest.  Although such impropriety is not required for an interested person to file an objection to a claim, this is the typical scenario where one would see a non-personal representative filing an objection to a creditor claim.

Once the objection is filed, however, the claimant has their own time limitation to consider.  Pursuant to Fla. Stat. §733.705(5), a claimant is limited to thirty (30) days from the date of service of this objection to bringing an independent action upon the claim filed.  In other words, the creditor has to file a separate lawsuit against the estate in order to collect on his, her, or its claim.  Moreover, Florida case law is clear that this lawsuit must be an “independent” lawsuit, meaning that it cannot be filed in the probate estate.  Williams v. Estate of Williams, 493 So.2d 44 (Fla. 5th DCA 1986); In re Estate of Fornash, 372 So.2d 128 (Fla. 2d DCA 1979). 

If you are involved in an estate administration that requires some attention to the collecting or defending of a creditor claim, it is in your best interest to consult with an attorney experienced in the probate process in order to ensure that the proper steps are being taken to prosecute or defend such a claim.     


Most Recent Posts from May, 2012