When someone dies and their estate enters probate, there are numerous legal processes that have to take place. A will needs to be proven, a personal representative must be appointed, the deceased’s property has to be identified and inventoried, taxes and debts will be paid, and then the remaining property is distributed in accordance with the will – or state law if there isn’t a will.
Despite it being time-consuming and often expensive, the probate process is generally pretty straightforward. And while no two estates are alike, the steps involved are the same – regardless of whether an estate is particularly complicated or simple to understand.
One of the major purposes of probate is to make sure that the deceased’s debts are paid, and the personal representative – the person who is responsible for administering the probate estate – is in charge of contacting creditors to make them aware of the probate proceedings.
The Personal Representative’s Responsibility
Once a personal representative is appointed, one of his or her duties is to alert creditors to the death so they can then file claims in the probate estate to settle the debt.
How does a personal representative do this?
According to Florida law, the personal representative will publish a notice to creditors in the local county’s newspaper. The notice must contain:
- The decedent’s name
- The estate’s file number
- The probate court’s address
- The name and address of the personal representative
- The name and address of the personal representative’s lawyer
- The date of publication
The publication has to be run once a week for two consecutive weeks. In addition to the publication, the personal representative also has to contact and “make a diligent search” of known or “reasonably ascertainable” creditors. And here the law specifically states that “Impracticable and extended searches are not required.”
The definition of “reasonably ascertainable” creditors is often disputed because, in many of these cases, a personal representative might not discover a particular creditor. And in that instance, the court will then need to determine whether the creditor was in fact a reasonably ascertainable creditor.
The Creditors’ Responsibility
After the personal representative gives notice and attempts to contact the decedent’s creditors, it is then up to the creditors to follow through with filing their claims in a timely manner.
Under Florida law, a creditor has 3 months after the date of the first publication of the notice to creditors to file a claim with the probate estate. Once those 3 months are up, a creditor may only file for an extension of the time frame on the grounds of fraud, estoppel, or not being given sufficient notice of the claim period.
In Soriano v. Estate of Manes, Soriano – a creditor – claimed that the decedent committed misdemeanor battery and she wasn’t served with a notice to creditors, so the time limit (she was one month past the 3-month period) didn’t apply to her. Her claim was ultimately barred not only because it wasn’t filed in time, but also because the personal representative doesn’t have to serve “everyone who may conceivably have a claim.”
So, as a creditor, it is especially important to make sure you pay attention to the newspaper and be cognizant of who is indebted to you. Waiting too long could cost you a lot of money if you miss the 3-month filing period for a claim.
If you have questions or concerns about probate and creditor claims, contact an experienced Florida probate attorney to get the answers you need.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.