By: Ruzy Behnejad and Phillip B. Rarick, J.D.
Executive Summary
In Florida, creditors have a two year statute of limitations period to file claims against the estate or trust of a decedent. However, upon opening a probate estate, a Personal Representative (“PR”) or Executor, can take action to shorten this claim window. First, the PR can serve all reasonably ascertainable creditors with Formal Notice and the creditor will then have only 30 days to file a claim. Second, the PR can reduce the claim period window to 90 days by publishing a Notice To Creditors.
Note: These statutes of limitation do not affect or apply to any federal taxes levied by government agencies such as the IRS.
Notifying Creditors
The PR, under F.S. 733.2121(3)(a) must promptly make a diligent search to determine the creditors of the decedent who are reasonably ascertainable and must serve a copy of the notice of creditors on those creditors. The “reasonably ascertainable” standard requires the PR to check all mail, bank statements, and check registers in order to find the decedent’s creditors.
Filing a Statement of Claim
Florida Statute 7.33.702(1) requires any claimant against the testator’s estate to file a claim in the probate proceeding for the testator within the later of three months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service of the copy of the notice on the creditor.
Creditors who are not served with a copy of the Notice to Creditors, but believe they are reasonably ascertainable, as defined by the statute, can file a petition for extension of time.
Any claim not properly and timely filed within Florida’s statute of limitations is deemed to be barred. The court, however, may extend the time in which the claim may be filed on grounds of fraud, estoppel, or insufficient notice.
Revocable Trusts Claim Period
Often times a testator will have established a revocable trust, or “living trust”, which will require the trustee of the trust to pay any enforceable claims of the testator’s creditors from the trust assets. In such circumstances, the trustee is required to file a Notice of Trust which will inform the testator’s creditors as to the existence of the trust and of their rights to enforce their claims against the trust assets. Furthermore, if a probate proceeding is not commenced the assets comprising the testator’s revocable trust are subject to a two-year creditor’s claim period, rather than the typical three month claim period, discussed above, available in Florida Probate Formal Administration. Trust Administrators can shorten this two year claims window by taking advantage of the reduced statute of limitations associated with the publication of the notice to creditors in the probate process.
Takeaway Points
1. The Statute of Limitations for a Florida probate estate or trust administration is two years unless an probate estate is filed, and Formal Notice served on reasonably ascertainable creditors or a Notice to Creditors is filed.
2. If a Formal Notice is served, the claim period is 30 days from date of service unless extended by the court.
3. If a Notice to Creditors is published, the claim period is 90 days from the date of the first publication.
For more information contact Phil Rarick, Miami probate attorney, with Rarick & Bowden Gold, P.A. at (305) 556-5209 or info@raricklaw.com
Special Note
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.