Blogs from November, 2015


We have previously written entries regarding Fla. Stat. §733.702 and the time limitation for filing a creditor claim in an estate proceeding.  This time limitation includes a claim founded upon the wrongful act of the decedent where the decedent’s estate would owe you some sort of financial award or relief.  Once expired, an extension of the time limit may only be granted upon grounds of fraud, estoppel, or insufficient notice of the claims period.

Fla. Stat. §733.2121 further discusses the procedure a personal representative must adhere to in order to commence this timeframe for creditors to file their respective claims.  Pursuant to this statute, the personal representative must publish a notice to creditors in a newspaper in the county where the estate is being administered and must make a diligent search to serve a copy of the notice to creditors on any reasonably ascertainable creditors.  The definition of a ‘reasonably ascertainable creditor’ has been a point of dispute and it is important to note that impractical and extended searches are not required under the statute.

The Court in Soriano v. Estate of Manes, Case No. 3D14-1651 (Fla. 3d DCA 2015) just recently addressed such an issue wherein a creditor of an estate had a potential civil action against the decedent for misdemeanor battery.  In this case, Soriano was not served with a notice to creditors and, therefore, argued that the time limitation for the published notice to creditors did not apply to her.  The Court determined that Soriano was not a reasonably ascertainable creditor who required actual service of the notice to creditors.  The Court cited to Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988) wherein the U.S. Supreme Court held that publication notice is sufficient for creditors who are not known or ‘reasonably ascertainable’ and that the personal representative need only make ‘reasonably diligent efforts’ to uncover the identities of creditors.  The notice to creditors does not need to be served on ‘everyone who may conceivably have a claim’ and a personal representative’s fiduciary duty does not include a duty to speculate and conjecture that someone might possibly have a claim against the estate.  Id.; Strulowitz v. Cadle Co. II, 839 So.2d 876 (Fla. 4th DCA 2003).   Because the potential claim by Soriano was too speculative, no duty existed on the part of the personal representative to provide her with actual notice of the creditor’s period.  As a result, her claim was barred because it was not timely filed.

It is important that all potential creditors of an estate (along with every personal representative) know his, her, or its rights and any applicable time restrictions one may have to pursue a claim.  It is vital that any potential creditor contact an experienced probate attorney to learn of all rights and claims that must be timely asserted.  Waiting too long may prove to be costly.


Most Recent Posts from November, 2015