Acting as a Personal Representative? Make Sure Creditors Receive Notice!

If you are acting as a personal representative (“PR”) of an estate, then one duty is to make sure that creditors of an estate, such as medical providers, ambulance services, credit card companies, etc., receive notice of the decedent’s death so the creditor has the ability to file a claim in the estate. If a creditor files a claim in the estate, then, under Section 733.705 of the Florida Statutes, the PR has the ability to object to the claim or pay the claim. But how do you know which creditors to notice? The best advice is ALL of them.

Under Section 733.2121(3)(a) of the Florida Statutes, the PR has the duty to notice all creditors who are “reasonably ascertainable”. If the notice is served on those creditors, then the creditor has the later of 3 months after publication or 30 days after service of notice to file a claim. For those creditors who are not “reasonably ascertainable” Section 733.2121 (2) of the Florida Statutes requires the PR to publish a notice in a newspaper once a week for 2 weeks and the creditor must file a claim within 3 months of the first notice of publication.

Section 733.710 of the Florida Statutes provides that, notwithstanding any time frame, any creditor claim (unless the claim has been filed prior to the end of 2 year period) is barred 2 years after the date of the decedent’s death. What if the creditor is reasonably ascertainable and the creditor never receives notice? Prior to the recent Florida Supreme Court case, a court had to grant an extension of time for such a creditor to file the claim under Section 733.702(3) of the Florida Statutes.

In Jones v. Golden, the Florida Supreme Court determined that a reasonably ascertainable creditor did NOT have to receive an extension of time and could file a claim within the 2 year time limitation. The Florida Supreme Court had to decide a conflict with the lower court decisions in Golden V. Jones, (which provided that a court did NOT have to grant an extension of time for a reasonably ascertainable creditor to file a claim) and Morgenthau v. Andzel  and Lubee v. Adams (both of which provided that a court DID have to grant an extension of time for a reasonably ascertainable creditor to file a claim).

The Court determined that a reasonably ascertainable creditor who was NOT served with a notice to creditors would have 2 years from the date of death to file a claim. The Court referred to Tulsa Professional Collection Services, Inc. V. Pope, the United States Supreme Court decision, which required that reasonably ascertainable creditors receive notice under the Due Process Clause of the Constitution.  “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.”

ADVICE: Make a diligent search of the decedent’s mail, checkbook, files, etc to be sure you have determined all “reasonably ascertainable creditors” and be sure they all receive the notice to creditors so the time period lapses. Make sure you are sure that all creditors and their claims are resolved BEFORE you distribute assets to the beneficiaries. Be careful out there!

New Word of the Week: Statute of Repose: A statute that limits a time in which an action may be brought; the period of the statute of repose begins when a specific event happens regardless of whether a cause of action has accrued or whether any injury has resulted. For example, assume a car is manufactured with a defect. The statute states that no action can be brought against the manufacturer after 5 years from the manufacture date. This statute of repose is 5 years, even if an injury accrued 10 years after the manufacture date.


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