Associate Attorney
It’s one of the more frustrating outcomes in estate litigation: a claimant fights hard to establish a legal right, wins that fight, and still walks away with nothing. A recent Second District Court of Appeal decision illustrates exactly how that happens — and why “am I owed?” and “will I actually collect?” are two very different questions.
The Ascertainable Creditor Problem
When someone dies, their estate’s personal representative has to give formal notice to creditors so they have a chance to file claims. Florida law doesn’t just protect creditors the estate happens to notice — it protects “reasonably ascertainable” creditors too, a status that can be established through litigation.
Winning Ascertainable-Creditor Status Doesn’t End the Analysis
Here’s the part that catches people off guard: establishing reasonably-ascertainable-creditor status only gets you a seat at the table. Florida’s probate code pays claims in a strict statutory order under section 733.707, Florida Statutes, and a trial court has no discretion to deviate from that priority scheme. In Kunke v. Est. of Kunke, (Fla. 2d DCA Sept. 9, 2026), a family member learned the hard way that although they were a creditor, statutory priority precluded their collection efforts.
A creditor can spend time, money, and effort litigating to establish a claim, win outright, and still recover little or nothing if the estate’s assets are consumed by higher-priority classes of claims — including costs of administration and attorney’s fees — before his claim is ever reached.
The Policy Concern the Court Flagged
Florida courts have expressed concern that prolonged litigation over creditor status can itself threaten recovery for everyone involved, by depleting the funds available to pay any claim at all.
Courts have also recognized that whether to award attorney’s fees out of estate assets in this kind of dispute is left to the trial court’s discretion — not an automatic entitlement either way.
The Takeaway for Clients
If you’re asserting — or defending against — a creditor claim in a Florida estate, the fight over whether the claim is valid is only half the analysis. Before investing significant time and expense in that fight, it’s worth assessing the estate’s overall financial picture: what’s the asset pool, what higher-priority expenses are already accruing, and realistically, will a win translate into a recovery? Sometimes the more strategic move is resolving the dispute early — before the cost of proving you’re right outpaces what’s left to collect.
This post discusses general principles of Florida probate law and does not constitute legal advice. Every estate’s facts and priorities differ; consult an attorney about your specific situation.