The time period for filing a claim against an estate is set forth in the probate code. and if you miss the deadline that you can be barred forever from filing a claim against an estate. Section 733.2121 of the Florida Statutes requires that the personal representative “promptly” publish a notice to creditors (“NTC”) once a week for 2 consecutive weeks and must actually send the NTC to “reasonably ascertainable creditors”. Section 733.702 of the Florida Statutes requires that a claimant file a claim within the later of 3 months after the publication of the NTC or 30 days after service of the NTC. What happens when the NTC is published by a proposed personal representative PRIOR to actually being appointed as a personal representative?
In the recent case, Richard V. Richard, this question was answered. Karen and Joel were appointed as co-personal representatives for the Estate of Edward A. Richard on June 14, 2012. ONE day prior to being appointed by the court on June 13, 2012, they published (and Karen and Joel signed) the NTC. Ultimately, Karen filed a claim against the estate outside the normal time frames as stated above. The issue was whether the NTC was proper since the NTC was published by personal representatives PRIOR to their appointment.
Section 733.601 of the Florida Statutes provides for a “relation back” doctrine which provides that, once a personal representative is appointed, then their acts prior to their appointment are approved. Karen argued that, because the statute differentiates between “powers” and “duties”, and “powers” NOT “duties are specifically approved and because the publication of the NTC is a “duty”, then there was no approval of the publication and therefore the publication was not proper.
The appellate court disagreed and stated that the statute specifically addresses “acts” performed prior to the appointment which are approved. The court then analyzed case law and differentiated between “acts” and “duties”.
Karen lost this issue on this issue but the court remanded the case to determine whether she was a “reasonably ascertainable creditor” and if so, should she have had a NTC actually sent to her (even though she was the one that actually signed the NTC).
ADVICE: The moral of this case… Once you know the NTC is published or you receive a NTC, if you have a claim, FILE the claim in a timely manner. Trying to fix the matter can result in excessive attorney fees and costs.
WORD OF THE WEEK: “Reasonably Ascertainable Creditor” is a decedent’s creditor that a personal representative should have discovered. The personal representative must diligently search for such a creditor such as reviewing bank registers (whether online or in a check book), papers in the decedent’s home, statements that come in the mail, online accounts, divorce decrees, business records, etc. Such creditor MUST receive an actual NTC and if they do not actually receive the NTC, then such creditor is NOT barred until 2 years after the date of the decedent’s death. Thus, if such a creditor files a claim within the 2 year period and the personal representative SHOULD have discovered the creditor and should have sent them the NTC, and the personal representative has distributed all the assets, then the personal representative could be held personally liable for distributing the assets prior to satisfying such a claim.
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