Attorney
Are you a creditor of an Estate (i.e. do you have a claim against an individual who has passed away)? You may wonder: is there a time limit for you to file a claim against the Estate?
Alternatively, if you have been appointed as a Personal Representative of an Estate, what is your duty to notify creditors (or potential creditors) of the Estate? The answer to these questions depends on whether a creditor is considered a “reasonably ascertainable creditor” under Florida Law.
Personal Representative’s Duty to Perform a Diligent Search for Creditors
Pursuant to Fla Stat. § 733.2121, a Personal Representative is required to publish a “Notice to Creditors.” The publication of the Notice to Creditors provides notice to all potential creditors of the Estate that they must file any claims against the Estate within three (3) months of the publication of the Notice in accordance with Fla. Stat. § 733.702.
Pursuant to Fla. Stat. §733.2121(3)(a) every personal representative must make a diligent search to uncover the names and addresses of any “reasonably ascertainable creditors” and promptly serve a copy of the Notice to Creditors upon those reasonably ascertainable creditors.[1] In other words, if a creditor is “reasonably ascertainable” then this creditor is entitled to actual notice of the Estate and deadline to file a claim.
Reasonably ascertainable creditors are any creditors that the personal representative would discover upon exercise of reasonable diligence. While a “reasonably ascertainable creditor” is not precisely defined under Florida law, courts have considered factors such as whether the decedent of the estate had actual knowledge of a claim or potential claim, whether there was any pending litigation against the decedent, and/or whether the creditor’s identity should have been reasonably apparent to the personal representative following a diligent search. For example, if a creditor provided actual notice of a dispute, claim, or pending litigation to the decedent, then that creditor would likely be deemed reasonably ascertainable and should receive actual notice of the Estate by the personal representative.
Deadline for Creditors to File a Claim
If a creditor is served with a Notice to Creditors, a creditor must file their claim within 30 days of service pursuant to Fla. Stat. §733.702(1). If a creditor fails to file its claim within 30 days of service of the notice, his/her/its claim against the Estate is barred and creditor cannot recover against the Estate.
All other creditors are provided notice of the Estate via the publication of the Notice to Creditors and have three (3) months from the date of publication of the Notice to file their claims. If a creditor fails to file its claim within three months of service of the Notice, his/her/its claim against the Estate is barred and creditor cannot recover against the Estate.
However, there is an exception to this rule for reasonably ascertainable creditors who the personal representative fails to properly serve with a Notice to Creditors. If a reasonably ascertainable creditor has not been served with a Notice to Creditors, Florida case law provides that such a claim is timely filed within two (2) years of the decedent’s death pursuant to Fla. Stat. § 733.710. Therefore, if a creditor who has not been served with a notice to creditors can show that he/she/it was a reasonably ascertainable creditor (and thus entitled to actual notice of the claims period), then the creditor may file its claim at any time prior to two years after the decedent’s death.
Generally, probate courts in Florida strictly construe the deadlines laid out in the Probate Code for the filing of creditor’s claims. However, extending the deadline to file a claim may be possible under Fla. Stat. §733.702(3), which provides that an extension “may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period.” Nevertheless, such extensions are not typically granted without good cause. [2]
How Boatman Ricci Can Assist
As a Personal Representative, it is critical that you conduct a diligent search to identify reasonably ascertainable creditors and timely serve those creditors with a Notice to Creditors. As a creditor of an Estate, it is imperative that you timely file your claim against the Estate.
Boatman Ricci has experience representing Personal Representatives and creditors in probate proceedings and estate administration. If you need assistance, please contact Boatman Ricci at (239) 330-1494.
[1] Pursuant to Fla. Stat. Sec. § 733.2121(3)(a) “The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors.”
[2] Good cause has been defined as “a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not mere ignorance of law, hardship on petitioner, and reliance on (another’s) advice.” In re Goldman’s Estate, 79 So. 2d 846, 848 (Fla. 1955) (internal citations omitted).
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