Blogs from October, 2015


How long does a creditor have to file a claim in the probate estate?

Many clients ask how long it takes for an estate to be completely administered.  The answer is: it depends. One of the several factors that will affect the timeframe is how many and what type of creditor claims are filed in the estate.  Once a creditor claim is filed, the estate (through the personal representative) must properly address the claim.

Fla. Stat. §733.701 states that every personal representative must publish and serve a notice to creditors.  This notice to creditors will place any prospective creditor of an estate on notice that they have a certain time period within which to file a claim.  If the creditor does not timely file a claim, it will be forever barred and that creditor cannot recoup any funds from the estate.

Therefore, the essential question that every personal representative and probate attorney must ask is, “How long does the creditor have to file a claim?”

The answer, like before, is: it depends.

Fla. Stat. §733.702 is the operative statute dealing with this and provides that a creditor must file their claim within 30 days of service of the notice to creditors or 3 months after the first publication of the notice to creditors (or the later thereof).  Further, it is well-settled Florida law that all “reasonably ascertainable” creditors must be served with the notice to creditors (which would then trigger the 30-day limitations period referenced above).  Nevertheless, all claims must be filed within 2 years of the decedent’s date of death.

However, a slew of cases has arisen in Florida regarding the service of the notice on “reasonably ascertainable” creditors.  The Court in In re Estate of Puzzo, 637 So. 2d 26 (Fla. 4th DCA 1994), stated that “a claim of a reasonably ascertainable creditor, who was never served with a notice to creditors, is timely if it is filed within two years of the decedent’s death.”  It added that “[b]ecause such a claim is timely under section 733.702(1), it would be unnecessary for a reasonably ascertainable creditor to file a motion for extension of time under section 733.702(3).”

Because of conflicting decisions coming out of the Florida appellate courts regarding this issue, the Florida Supreme Court heard a matter and issued an opinion, sc13-2536, on October 1, 2015 holding as follows: “claims of known or reasonably ascertainable creditors of an estate who were not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death.”

Therefore, it is vital for all personal representatives and probate attorneys to have a clear understanding of who might be considered a “reasonably ascertainable” creditor of an estate.  If such persons or entities are not properly served with the notice to creditors, then an estate may have to deal with creditor issues throughout the administration of the estate or even after the estate is closed.  It is important that you consult with an experienced probate attorney to understand the legal complexities of an estate administration.


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