Recent Developments And Common Pitfalls In The Creditors’ Claims Process

By Theodore S. Kypreos

I. INTRODUCTION TO THE CREDITORS’ CLAIMS PROCESS

When a Florida resident dies with outstanding debt or obligations, the Florida Probate Code establishes a detailed creditors’ claims process which allows creditors to recover funds from a decedent’s estate. This process includes specific timelines and procedures that creditors must follow closely to ensure their claims against an estate are valid and enforceable. In certain instances, the procedures set forth in the Florida Probate Code interact with the Florida Rules of Civil Procedure. As such, this Article analyzes the recent developments and common pitfalls with respect to the creditors’ claims process, specifically including the importance of timely filing a claim against a decedent’s estate and satisfying the independent action requirement.

II. THE IMPORTANCE OF TIMELY FILING A CLAIM AGAINST THE ESTATE

     A. Untimely Claims are Barred

After the death of an individual, the personal representative of the estate must promptly publish a notice to creditors.[1] The notice informs creditors that they must file claims against the estate with the court within certain time periods or else the creditors’ claims will be forever barred.[2] Fla. Stat. § 733.702(1) (2020) provides that no claim is binding upon the estate unless filed on or before the later of 3 months after the first publication of notice to creditors or 30 days after the date of service on the creditor. This statute was brought to the forefront of creditor claims issues by the Fourth District Court of Appeal’s 2016 decision in United Bank v. Estate of Frazee.[3] Historically, courts like Frazee have strictly construed the 30-day deadline under Fla. Stat. § 733.702(1) (2020) to bar the claims of creditors attempting to file a claim after the deadline has expired.[4]

While this result may seem harsh, the Florida Probate Code provides for an extension of time to file a claim on three grounds. Specifically, Fla. Stat. § 733.702(3) (2020) provides that an extension may be granted on the grounds of (1) fraud, (2) estoppel, or (3) insufficient notice of the claims period.[5] However, as set forth herein, demonstrating the existence of any one of these three grounds may prove to be an uphill battle.

          1. Estoppel as a Ground for Extension

A personal representative will be estopped from denying an untimely claim if a claimant can prove its reliance on “a false representation or concealment of material facts.”[6] “In the probate context, estoppel also requires a showing of affirmative deception.”[7] The elements of estoppel must be proved by clear and convincing evidence.[8]

The Florida Probate Code, and the cases discussed herein, distinguish between a personal representative’s acknowledgement of a debt owed by the decedent, on one hand, and “false representation” or “affirmative deception” regarding the estate’s intent to pay the debt, on the other hand. Fla. Stat. § 733.702(1) (2020) expressly provides that an untimely claim is barred “even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise.”

• In Harbour House Properties v. Estate of Stone, the decedent leased an apartment from Harbour House Properties during her life, but died before the expiration of the lease term.[9] Before the claims period expired, the personal representative brought the rent payments current and entered into an agreement with Harbour House to abide by the terms of the original lease.[10] However, after the claims period expired, the personal representative stopped making rent payments as they became due.[11] Harbour House filed a claim against the estate, arguing “the personal representative had lulled him into a false sense of security and should therefore be estopped to claim a bar” against its claim.[12] The court granted the personal representative’s motion to strike the claim as untimely.[13]

On appeal, the Fourth District observed that, under Fla. Stat. § 733.702, “recognition or payment of a claim by a personal representative, standing alone, will not excuse the untimely filing of a claim.”[14] However, the court remanded for an evidentiary hearing, concluding that “the conduct of the personal representative was such that Harbour House “manifestly was entitled to an evidentiary hearing to determine whether the acts, representations, and conduct of the personal representative and his agent had lulled [Harbour House] into a false sense of security concerning the need for the presentation of a claim and whether the personal representative ought therefore be estopped to deny the presentation of the claim.”[15] The court additionally noted that the personal representative and Harbour House had entered into a “reletting agreement,” and therefore, “the personal representative recognized that the lease was a viable and continuing debt, as opposed to merely recognizing it as a preexisting obligation.”[16]

Accordingly, an estate may be estopped from denying an untimely claim if the claimant can prove (a) an affirmative deception by the personal representative, Castro v. East Pass Enterprises, Inc.,[17] and (b) the estate’s recognition of the debt as viable and continuing, as opposed to preexisting, Harbour House.[18]

          2. Insufficient Notice of the Claims Period as a Ground for Extension

The personal representative does not have a duty to advise a potential creditor of the deadline to file a claim beyond the statutory requirement of publishing and serving the Notice to Creditors. Instead, the burden is on the potential creditor to ascertain the claim deadline and timely file a claim against the estate.

In Castro,[19] an action was pending against the decedent at the time of his death.[20] Because of the ongoing litigation, the creditor believed it did not need to file a separate claim in probate court to secure its claims against the Decedent’s estate.[21] Consequently, the creditor failed to timely file a claim against the estate.[22] The creditor petitioned for an extension of time to file a claim pursuant to Fla. Stat. § 733.702(3), and alleged that the personal representative had concealed the statutory requirement to file a claim in probate court.[23] The court denied the request for extension, reasoning as follows:

The “material fact” allegedly concealed was the legal requirement to file a statement of claim in the probate division. This requirement is found in the probate code and case law and, as such, was not entirely in [the personal representative’s] control. Because both parties had the same means of ascertaining the truth as to whether a claim must be filed in probate court, there can be no estoppel. This is true even though the alleged estoppel was based on omission. No party can claim ignorance of the law.[24]

          3. Fraud as a Ground for Extension

An extension of time to file a claim may also be granted on a showing of fraud on the part of the personal representative.[25] The elements for actionable fraud are (1) a false statement concerning a material fact; (2) knowledge by the person making the statement that the representation is false; (3) the intent by the person making the statement that the representation will induce another to act on it; and (4) reliance on the representation to the injury of the other party.[26] Notably, because estoppel requires a showing of “affirmative deception” in the probate context, allegations of estoppel and fraud will likely arise from the same facts.

     B. “Good Cause” is Not a Ground for Extension

Long gone are the days when an extension to file a claim may be granted on the basis of “good cause.” Under the current version of Fla. Stat. § 733.702(3) (2020), good cause is not a ground for extension. In Scutieri v. Estate of Revitz,[27] the court found there was good cause to grant the claimant an extension of time because there was no prejudice to the estate, personal representative, beneficiaries, or anyone else, and the delay was not excessive.[28] A claimant may be tempted to rely on Scutieri for a good cause argument. However, the Scutieri decision was based on the 1987 version of Fla. Stat. § 733.702 (2020), which did not set forth the specific grounds for an extension. Good cause is not a basis for seeking an extension under the existing statute.

     C. Mistake is Not a Ground for Extension

The Fourth District’s decision in United Bank v. Estate of Frazee,[29] indicates that mistake is not a ground for extension of time to file a claim against the estate under Fla. Stat. § 733.702(3) (2020). In Frazee, a non-Florida attorney attempted to file two claims against an estate in Florida prior to the claims deadline, but mistakenly filed the claims as a single filing, and as a result, missed the deadline for filing the claims.[30] The Fourth District explained that, notwithstanding the attorney’s attempt to timely file the claims, which were ultimately filed one week later, the claims were barred because there “were no circumstances meriting an extension” of time under Fla. Stat. § 733.702(3).[31]

The Frazee decision is noteworthy because it means that, even where the potential claimant knows of the deadline to file a claim, and actually attempts to timely file a claim, the claim may still be barred as untimely.[32]

III. THE INDEPENDENT ACTION REQUIREMENT & DEATH DURING LITIGATION

After a claimant files a statement of claim against the decedent’s estate, the personal representative may object to the claim.[33] If the personal representative objects to the claim, the claimant has 30 days from the date of service of the objection within which to bring an independent action upon the claim.[34] Accordingly, questions may arise in the context of independent actions when the decedent is already a party to a civil action at the time of death.

Fla. Stat. § 733.705(5) (2020), provides that a claimant “is limited to a period of 30 days from the date of service of an objection within which to bring an independent action upon the claim.”[35] The statute does not address the procedure for when an action against the decedent is already pending at the time of his or her death. Is the claimant required to file a new action or is it sufficient that an action is already pending? Should the claimant file notice of the pending action in the estate proceeding?

This matter is further complicated by the fact that the plaintiff will also want to substitute the estate for the defendant in the civil action. The Florida Rules of Civil Procedure contain separate substitution requirements in the event of the death of a party to a lawsuit, which conceivably could conflict with the 30-day deadline under Fla. Stat. § 733.705 (2020). How should courts address the inconsistency between the Probate Code and the Florida Rules of Civil Procedure? Which provision should prevail in the event of a conflict?

     A. A Pending Action Satisfies Fla. Stat. § 733.705 (2020).

It is now widely accepted that a pending action to which the decedent is a party can meet the independent action requirement of Fla. Stat. § 733.705 (2020).[36]

     B. An Action in a Foreign Jurisdiction Satisfies Fla. Stat. § 733.705 (2020).

Likewise, a pending proceeding in a U.S. jurisdiction other than Florida satisfies the independent action requirement of Fla. Stat. § 733.705 (2020). In Poulsen v. First National Bank of Palm Beach,[37] the court observed the fact that the “mere fortuitous happening that one of the personal representatives of the defendant estate should be a national bank with its principal offices in Palm Beach County, Florida, ought not, standing alone, prevent the timely filed action in the Wyoming state court from being a full and adequate compliance with the time limitations of Section 733.705(3).”[38]

Finally, under certain circumstances, an action in a jurisdiction outside of the U.S. is sufficient to meet the requirement of Fla. Stat. § 733.705 (2020). In In re Estate of Brown,[39] the claimant’s counterclaim in Bermuda was sufficient where the decedent chose that jurisdiction and the personal representative substituted himself for the decedent in the Bermuda proceeding.[40]

With that issue more or less resolved, the next question is whether a claimant is required to file something in the estate proceeding, not only to alert the estate of the pending action (if the estate does not know already), but to also comply with the 30-day deadline to file an independent action under Fla. Stat. § 733.705 (2020).

     C. Substitution of the Personal Representative is Required

          1. Florida Rule of Civil Procedure 1.260(a)

Before addressing what exactly a claimant needs to do to meet the deadline in the probate proceeding, it is useful to understand the requirements for substituting the decedent’s estate in the civil proceeding. Florida Rule of Civil Procedure 1.260(a), which governs substitution in the event of the death of a party, provides:

The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Florida Rule of Judicial Administration 2.516 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

(Emphasis added).

“The rule is in its present form precisely so that the process of substitution of a new party for a party who dies while litigation is pending will not cause otherwise meritorious actions to be lost. The rule is supposed to dispel rigidity, create flexibility and be given liberal effect.”[41] Most recently, the court in Stern v. Horwitz,[42] reaffirmed that “the plain language of the rule indicates that dismissal is triggered only when the motion for substitution is not filed or served within the ninety-day period.”[43] Accordingly, under Rule 1.260, the plaintiff has 90 days to file a motion for substitution of the estate, from the date the death is suggested on the record by any person.

          2. Filing of Motion for Substitution & Suggestion of Death is the “Equivalent” of Filing an Independent Action

Returning to the probate proceeding, is it sufficient that an action against the decedent is pending on the date of the decedent’s death, or is something more required to meet the independent action requirement of Fla. Stat. § 733.705 (2020)?

In Cloer v. Shawver,[44] the court addressed this very issue under a prior version of the claims statute. In Cloer, an action was brought prior to the death of the defendant.[45] Following the defendant’s death, the claimant filed a motion for substitution within the time period for filing an independent action.[46] The court substituted the defendant’s estate as the party defendant; however, the personal representative for the estate was not served with the motion for substitution until after the period for filing an independent action expired.[47]

On appeal, the court framed the issue as “whether the filing by plaintiff of the motion for substitution of parties constituted a bringing of ‘appropriate suit, action or proceedings’ as contemplated by [section 733.18, Fla. Stat.],” or whether the statute requires “that service of the motion for substitution of parties be accomplished upon the [personal representative] within the two months period.”[48] The court held that “where a suit is pending prior to the death of the defendant, the filing of the suggestion of death and the motion for substituting the representatives of the estate as party defendants is equivalent to the filing of a complaint against the estate.”[49] Thus, the filing of the suggestion of death and the motion for substitution within 30 days of the estate’s objection to the claim satisfies the independent action requirement of Fla. Stat. § 733.705 (2020). This works because, if the plaintiff is going to pursue their lawsuit, then he or she needs to substitute the estate anyways.

The personal representative for the estate does not need to actually be substituted within the 30-day period. Rather, it is sufficient that the motion to substitute and suggestion of death are filed. (Note that, in Cloer, the court actually substituted the personal representative within 30 days.) Also, as it stands, nothing is required to be filed in the probate proceeding. The Cloer decision also assumes the plaintiff is always the party that files the suggestion of death in the civil action. In some cases where the court applied Rule 1.260, the estate was required to file a suggestion of death as a matter of due process.[50]

          3. Potential Conflict Between Fla. Stat. § 733.705 (2020) and Florida Rule of Civil Procedure 1.260(a)

A potential complication may arise when a creditor is simultaneously faced with the 30-day deadline in which to “file” an independent action under Fla. Stat. § 733.705 (2020), and the 90-day period in which to file a motion to substitute a party for the decedent under Rule 1.260(a). Consider this example:

The decedent was the defendant in a pending civil action at the time of his death. The plaintiff in the civil action (who is now a potential creditor of the estate), learns of the decedent’s death, and promptly files a claim against the newly opened estate.

One week later, the personal representative files a timely objection to the claim. Now, the plaintiff has only 30 days to file an independent action (i.e., a motion for substitution & suggestion of death) pursuant to Fla. Stat. § 733.705 (2020). and Cloer. However, the plaintiff likely still has considerably more time remaining to substitute the personal representative for the estate in the civil action under Rule 1.260.

In this example, is the 90-day period to file the motion for substitution in the civil action shortened to 30 days to comply with Fla. Stat. § 733.705 (2020)? Under Rule 1.260, the 90-day period does not even begin to run until a suggestion of death is filed in the civil proceeding. Under Cloer, notwithstanding the 90-day under Rule 1.260(a), the suggestion of death and motion for substitution must be filed in the civil case prior to the expiration of the 30-day period under Fla. Stat. § 733.705 (2020).

Based on the foregoing, best practices call for the filing of a motion for substitution of the personal representative of the Decedent’s estate within 30 days of an objection. This result is problematic because, based on Cloer, in every civil action where the estate must be substituted as a defendant in order for the action to proceed, the 90-day time period under Rule 1.260 is effectively superseded by the Probate Code. Fortunately, the chances of this situation actually arising are low because one, estates usually take longer to open, and two, it usually takes the personal representative longer to get around to objecting, by which time the 90-day period should be well under way.

     D. The Personal Representative Should Object to a Claim Even When an Independent Action Has Already Been Filed

Fla. Stat. § 733.705(2) (2020), provides, in relevant part, that the personal representative of the estate must file an objection within the later of four months of publication of notice to creditors or 30 days of the timely filing of a claim.

At least one case suggests it is unnecessary for the personal representative to object to a claim when an independent action is pending. In In re Klotz’ Estate,[51] the claimant brought a civil action against the personal representative of the defendant’s estate, and four days later, filed a timely statement of claim against the estate.[52] The personal representative did not file an objection to the claim, but filed an answer in the civil action.[53] The court explained “[t]he purpose of an objection . . . is to shorten the time within which a proceeding must be commenced.”[54] The court reasoned that “the requirement that [the personal representative] file an objection was an empty exercise and would accomplish nothing because the suit which the objection would precipitate was already in progress.”[55]

Notwithstanding the holding in Klotz’ Estate, the personal representative for the estate should object to the claim if there is an appropriate basis to do so. As set forth above, the objection triggers the claimant’s 30-day deadline to file a motion to substitute the personal representative in the civil action (after which the claim is barred). Moreover, the objection puts the claimant on notice that the claim is disputed by the personal representative. Finally, Fla. Stat. § 733.705 (2020), provides that the “failure to serve a copy of the objection constitutes an abandonment of the objection.” Thus, the reliability of the Klotz’ Estate decision is questionable. The personal representative should always file an objection to a claim if there is a basis to do so.

IV. THE PERSONAL REPRESENTATIVE’S DUTY TO CONDUCT A DILIGENT SEARCH FOR REASONABLY ASCERTAINABLE CREDITORS

By way of background, Fla. Stat. § 733.2121(3)(a) (2020), provides that the personal representative for an estate “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.” “[I]t is not just the claimant’s identity but its ‘claim’ that must be reasonably ascertainable.”[56] “When the identity of a creditor is known or reasonably ascertainable, due process requires that the creditor be given notice of the commencement of probate proceedings by mail or by such other means as is certain to ensure actual notice.”[57] Under Florida law, “a reasonably ascertainable creditor is one who can be determined by the personal representative through a diligent search.”[58] What constitutes a “diligent search” for reasonably ascertainable creditors is the subject of much consternation and debate.

In Strulowitz, a prospective creditor sought an extension to file an untimely claim based on a settlement agreement entered into by the decedent.[59] According to the creditor, a search of the decedent’s financial records, including his check book, bank statements, and check stubs would have revealed payments to the creditor on a quarterly basis during the six years prior to the decedent’s death.[60] The personal representative responded that he had searched the decedent’s files, bills, and correspondence, as well as the decedent’s check book for the year preceding his death. Further, “he had not received any bills, letters, payment books, phone calls, or correspondence of any kind concerning an outstanding debt.”[61] Following an evidentiary hearing, the trial court found the creditor was reasonably ascertainable and granted its request for extension of time to file a claim.[62]

In affirming, the Fourth District concluded that “reasonable people could differ as to what constitutes a reasonable search and what entails impractical or extraordinary effort.”[63] The court reasoned that, had the personal representative looked through the decedent’s check book, identified a pattern of checks to the creditor, and questioned the amounts, he might have identified the creditor.[64] The court additionally noted “the absence of any written rules or guidelines on specific steps that an estate administrator must take during the course of a diligent search.”[65] The court opined that “it would be helpful if the [Florida Bar] considered proposing or extending existing rules to give estate administrators and trustees more direction in their diligent searches for creditors.”[66] In a 2014 amicus curiae brief, the RPPTL Section of the Florida Bar recognized the Strulowitz court’s call for guidance, explaining:

We made a reasonable, but not exhaustive, search of cases, statutes, rules and treatises and found nothing the Section might offer that would serve as a useful rule for practitioners and all other Floridians beyond what we already have, but the Section will continue to consider the issue.[67]

In Soriano v. Estate of Manes,[68] the Third District drew a distinction between a “reasonably ascertainable creditor” and a mere “conjectural creditor.”[69] There, a prospective creditor alleged she had an unsecured claim against the decedent’s estate “based upon an imminent private tort action” arising from a criminal battery allegedly committed by the decedent.[70] She did not file a claim until four months after the notice to creditors was published, but argued the claim should be treated as timely because she was reasonably ascertainable creditor entitled to be served with the notice to creditors.[71] The trial court held that, although both the prospective creditor and the decedent had retained counsel in the criminal case, there was no evidence that an actual or potential civil claim would be filed.[72] Thus, the prospective creditor was not reasonably ascertainable.[73]

In affirming, the Third District explained the personal representative’s efforts simply must be reasonable under the circumstances:

[A]ll the [personal representative] need do is make “reasonably diligent efforts” to uncover the identities of creditors, and not everyone who may conceivably have a claim is properly considered a creditor entitled to actual notice. It is reasonable to dispense with actual notice to those with mere “conjectural” claims.[74]

As a mere “conjectural” creditor, the prospective creditor’s untimely claim was barred pursuant to Fla. Stat. § 733.702(1). The determinative factors in Soriano were (a) there was no evidence that the estate had actual knowledge of the civil claim, and (b) there was no indication that a more diligent search would have revealed the existence of the claim.[75]

More recently, in Cantero v. Estate of Caswell,[76] the Third District once again held that an alleged creditor of the estate was not reasonably ascertainable and struck his claim as untimely. In Cantero, the decedent died owning a piece of real property.[77] The personal representative properly published a Notice to Creditors and upon expiration of the 30-day deadline, no creditor claims were filed.[78] After the personal representative filed a Verified Statement as to creditors, which averred no creditors, the court ordered the property to be sold.[79] Approximately four months after expiration of the creditor claim period, the alleged creditor, Mr. Cantero, filed a Statement of Claim alleging he was entitled to all of the property’s sale proceeds.[80]

At an evidentiary hearing held by the trial court, the personal representative testified he “diligently searched the property” and did not find any paperwork regarding Mr. Cantero’s alleged interest in the property.[81] The personal representative testified he had only two conversations with Mr. Cantero.[82] During both conversations with the personal representative, Mr. Cantero never mentioned that he had an interest in the property.[83] Furthermore, Mr. Cantero also contacted the personal representative’s attorney and failed to mention that he had an interest in the property.[84] Instead, Mr. Cantero testified he was in a romantic relationship with the decedent when they decided to purchase the property.[85] Mr. Cantero admitted there were no documents in the decedent’s possession supporting his claim, but that he “paid all the monies to purchase the property and continued to pay the mortgage premiums while he resided there.”[86] He testified that he paid the down payment and had an oral agreement with the decedent that upon her death, the property would be transferred to him.[87] Ultimately, the trial court found that Mr. Cantero’s testimony was not credible.[88]

On appeal, the Third District stated that Mr. Cantero’s “basic inquiry” (i.e., his telephone calls to the personal representative and attorney) were not sufficient to put the personal representative on notice of his alleged interest in the property.[89] The court distinguished the case from In re Estate of Ortolano,[90] where it was undisputed that the personal representative knew there was pending litigation against the decedent, and Simpson v. Estate of Simpson,[91] where the testimony established that the personal representative had actual knowledge of the creditor’s claim because she made statements about the creditor’s stock interest.[92] Therefore, at most, Mr. Cantero was a “conjectural” creditor of the estate as seen in Soriano.[93]

Admittedly, from the perspective of advising the personal representative, it is difficult to distill the holdings of Strulowitz, Soriano, and Cantero into a formula for conducting a diligent search for reasonably ascertainable creditors. At a minimum, Strulowitz indicates the personal representative should be cognizant of, and promptly investigate, any patterns of payment by the decedent in the year before the decedent’s death.

V. THE APPLICATION OF JONES V. GOLDEN TO KNOWN OR REASONABLY ASCERTAINABLE CREDITORS

Fla. Stat. § 733.702(1) (2020), provides, in part, that “[n]o claim or demand against the decedent’s estate . . . is binding on the estate . . . unless filed in the probate proceeding on or before the later of the date that is 3 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 on the creditor.”

In Jones v. Golden,[94] the Florida Supreme Court accepted jurisdiction to review the Fourth District’s decision in Golden v. Jones,[95] and considered the following: whether the claim of a known or reasonably ascertainable creditor who is not served with notice to creditors is barred under Fla. Stat. § 733.702(1), if not filed within three months after the first publication of the notice to creditors (absent an extension), or whether the claim is timely if filed within two years of the decedent’s death under Fla. Stat. § 733.710.[96]

In Golden v. Jones, the Fourth District held “that if a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the statute of limitations set forth in section 733.702(1), Florida Statutes, never begins to run and the creditor’s claim is timely if it is filed within two years of the decedent's death.”[97] The Fourth District certified conflict with the First District’s decision in Morgenthau v. Andzel,[98] and the Second District’s decision in Lubee v. Adams,[99] which held that “even a reasonably ascertainable creditor who was not served with a notice to creditors is required to file a claim within the publication period of three months unless the creditor files a motion for an extension of time under section 733.702(3) within the two-year repose period of section 733.710.”[100]

The Florida Supreme Court approved the Fourth District’s decision in Golden and disapproved Morgenthau and Lubee, holding “the claim of a known or reasonably ascertainable creditor who was never served with a copy of the notice to creditors is timely if filed within two years of the decedent’s death.”[101] Therefore, “if a known or reasonably ascertainable creditor is not served with a copy of the notice, section 733.702(1) does not govern the timeliness of that creditor’s claims.”[102] The Court also recognized that notice is a constitutional requirement:

A personal representative is therefore constitutionally obligated to provide actual notice to known or reasonably ascertainable creditors and if the personal representative fails to provide that notice, the creditors’ claims cannot be barred except under section 733.710. The Fourth District’s decision in Golden properly recognizes the duty of the personal representative to provide notice to known and reasonably ascertainable creditors and the requirement of actual notice to satisfy due process as to those creditors.[103]

There are two key takeaways from the Jones v. Golden decision. First, the decision means a reasonably ascertainable creditor that was not served with notice to creditors has two years from the decedent’s date of death to file a claim against the estate. Second, the decision reinforces the rule that, all creditor claims—whether reasonably ascertainable or not—are barred after two years from the decedent’s date of death.[104]

VI. CONCLUSION

As set forth above, the Florida Probate Code establishes the process by which creditors may recover funds from a decedent’s estate. Creditors must pay close attention to the specific timelines and procedures that must be adhered to in order to ensure their claims against an estate are valid and enforceable. In doing so, creditors must be cognizant of the common pitfalls that may occur during this process, including the importance of timely filing a claim against the estate, satisfying the independent action requirement, and understanding how the Florida Probate Code interacts with the Florida Rules of Civil Procedure. Personal representatives must also pay close attention to the specific timelines and procedures in the creditors’ claims process, including timely filing an objection to a statement of claim and satisfying their duty to conduct a diligent search for reasonably ascertainable creditors.

[1] Fla. Stat. § 733.2121 (2020); see also Fla. Stat. § 733.701 (2020).

[2] Fla. Stat. § 733.2121 (2020).

[3] 197 So. 3d 1190 (Fla. 4th DCA 2016)

[4] See, e.g., Herman v. Bennett, 278 So. 3d 178, 181 (Fla. 1st DCA 2019) (holding that the three-month limitations period set forth under § 733.702(1) begins to run on the day of first publication and not the day after, thus rendering the claimant’s claim untimely); Johnson v. Townsend, 259 So. 3d 851, 858-69 (Fla. 4th DCA 2018) (“Because the wife’s community property interest was a ‘claim’ . . . the wife had three months after the time she published the notice to creditors to file her claim according to section 733.702(1).”); Spohr v. Berryman, 589 So. 2d 225, 226-27 (Fla. 1991) (“The first publication of the notice of administration . . . occurred on January 9, 1987. Under section 733.702 . . . , this meant that claims against the estate had to be filed by no later than April 9, 1978.”).

[5] See May v. Ill. Nat’l Ins. Co., 771 So. 2d 1143, 1154 (Fla. 2000) (“[T]he sole possibility for recovery against the estate is for the probate court to grant an extension of time for the filing of a claim on the grounds of fraud, estoppel, or insufficient notice.”).

[6] Castro v. East Past Enterprises, 881 So. 2d 699, 700 (Fla. 1st DCA 2004).

[7] Id.

[8] Id.

[9] 443 So. 2d 136, 137 (Fla. 4th DCA 1983).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 137.

[15] Id. at 138.

[16] Id. at 137-38. But see Am. & Foreign Ins. Co. v. Dimson, 645 So. 2d 45, 48 (Fla. 4th DCA 1994) (“Correspondence concerning the substitution of the estate in the litigation does not constitute estoppel on the part of the estate so as to excuse the failure to file a timely claim.”).

[17] 881 So. 2d 699, 700 (Fla. 1st DCA 2004).

[18] 443 So. 2d at 137-38.

[19] 881 So. 2d 699, 699 (Fla. 1st DCA 2004).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. (emphasis added).

[25] See Campbell v. Estate of Schleusener, 504 So. 2d 417, 417-18 (Fla. 4th DCA 1987) (evidentiary hearing required on the creditor’s petition to file untimely claim against the estate where creditor’s rationale for late filing of claim hinged on the question of fraud and estoppel).

[26] See Parham v. Fla. Health Scis. Ctr., Inc., 35 So. 3d 920, 928 (Fla. 2d DCA 2010); see also Adams v. Hackensack Trust Co., 22 So. 2d 392 (Fla. 1945).

[27] 510 So. 2d 1003 (Fla. 3d DCA 1987).

[28] Id. at 46.

[29] 197 So. 3d 1190 (Fla. 4th DCA 2016).

[30] Id. at 1191.

[31] Id.

[32] See id.

[33] See Fla. Stat. § 733.705(2) (2020).

[34] See id. § 733.705(5).

[35] Id. (emphasis added).

[36] See Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221, 1224 (Fla. 4th DCA 2000) (“[A]n action pending against a defendant at the time of the defendant's death will suffice to satisfy the “independent action” provision of the statute when there has been a substitution of the personal representative of the decedent’s estate, either by timely filed motion for substitution, or by the personal representative’s voluntary substitution.”).

[37] 407 So. 2d 338 (Fla. 4th DCA 1981).

[38] Id. at 340; see also S. J. Landau Corp. v. Estate of Riesner, 372 So. 2d 1134 (Fla. 2d DCA 1979) (Florida estate and New York action); Shessel v. Estate of Calhoun, 573 So. 2d 962 (Fla. 3d DCA 1991) (Florida estate and action filed in federal court); Lewsladder, 757 So. 2d at 1224 (application for arbitration of claim satisfied independent action requirement where the claim arose out of agreement providing for mandatory arbitration).

[39] 421 So. 2d 752 (Fla. 4th DCA 1982).

[40] Id. at 753.

[41] Metcalfe v. Lee, 952 So. 2d 624, 629 (Fla. 4th DCA 2007).

[42] 249 So. 3d 688 (Fla. 2d DCA 2018).

[43] Id. at 690

[44] 177 So. 2d 691 (Fla. 1st DCA 1965).

[45] Id. at 694.

[46] Id.

[47] Id.

[48] Id.

[49] Id. (emphasis added); see also Kornblum v. Heflin, 183 So. 2d 843, 845 (Fla. 2d DCA 1966) (“[F]iling of a motion to substitute a personal representative as a party defendant is also the equivalent to filing suit against an estate within the meaning of § 733.16(1)(a)”); Lewsdadder v. Estate of Lewsdadder, 757 So. 2d 1221, 1224 (Fla. 4th DCA 2000) (“[C]ourts have held that an action pending against a defendant at the time of the defendant’s death will suffice to satisfy the ‘independent action’ provision of the statute when there has been a substitution of the personal representative of the decedent’s estate, either by timely filed motion for substitution, or by the personal representative’s voluntary substitution.”) (internal citations omitted).

[50] See e.g., In Re Estate of Ortolano, 766 So. 2d 330 (Fla. 4th DCA 2000) (failure of personal representative to file a suggestion of death or otherwise notify prospective creditor of decedent’s death until after claims period expired estopped the estate from asserting the creditor’s claim was untimely filed); see also Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961) (misrepresentation where the personal representative never informed the plaintiff in the civil action of the decedent’s death, and as a result, the plaintiff missed the deadline to file a claim).

[51] 394 So. 2d 509 (Fla. 5th DCA 1981).

[52] Id. at 510.

[53] Id.

[54] Id.

[55] Id.

[56] Simpson v. Estate of Simpson, 922 So. 2d 1027, 1029 (Fla. 4th DCA 2006).

[57] Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876, 880 (Fla. 4th DCA 2003).

[58] Id. at 879 (emphasis added).

[59] Id. at 877.

[60] Id. at 880

[61] Id. at 878.

[62] Id. at 879

[63] Id. at 881.

[64] Id.

[65] Id.

[66] Id. at n.3.

[67] Brief for the Real Property, Probate and Trust Law Section of the Florida Bar as Amicus Curiae, Jones v. Golden, 176 So. 3d 242 (Fla. 2015) (No. SC13-2536), 2014 WL 6803947.

[68] 177 So. 3d 677 (Fla. 3d DCA 2015).

[69] Id. at 678.

[70] Id.

[71] Id.

[72] Id. at 680-81.

[73] Id. at 681.

[74] Id. (brackets and ellipses omitted) (citing Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478 (1988)).

[75] Id.

[76] 305 So. 3d 37 (Fla. 3d DCA 2019).

[77] Id. at 38.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Id. at 39.

[85] Id.

[86] Id.

[87] Id.

[88] Id. (emphasis added).

[89] Id. at 39-40.

[90] 766 So. 2d 330 (Fla. 4th DCA 2000).

[91] 922 So. 2d 1027 (Fla. 5th DCA 2006).

[92] Cantero, 305 So. 3d at 40.

[93] Id.

[94] 176 So. 3d 242 (Fla. 2015).

[95] 126 So. 3d 390 (Fla. 4th DCA 2013).

[96] Jones, 176 So. 3d at 243 (emphasis added) (jurisdiction pursuant to art. V, § 3(b)(4), Fla. Const.).

[97] Golden, 126 So. 3d at 390 (emphasis added).

[98] 26 So. 3d 628 (Fla. 1st DCA 2009).

[99] 77 So. 3d 882 (Fla. 2d DCA 2012).

[100] Golden, 126. So. 3d at 393 (emphasis added).

[101] Jones, 176 So. 3d at 248.

[102] Id.

[103] Id. at 249 (emphasis added).

[104] See Lerma-Fusco v. Smith, 220 So. 3d 562, 564 (Fla. 5th DCA 2017) (section 733.710, Florida Statutes, is a jurisdictional statute of nonclaim which cannot be extended, and thus, claims against an estate are limited to two years after the death of a decedent).

© 2021 This article was originally published in the Spring 2021 issue of ActionLine, a Florida Bar Real Property, and Trust Law Section publication.