A recent case reminds practitioners and clients that, while beneficiaries of an estate may not like it, creditors are also beneficiaries of an estate and actual notice should always be made to reasonably ascertainable creditors.
Cantero v. Estate of Caswell reminds us, that while clients need to be proactive in ascertaining creditors, they do not have to clairvoyant.
Jane Caswell (“Decedent”) died on April 16, 2017 owning property in Golden Beach, Florida (for those that do not know where that is…the town sits on 1.3 miles on the northernmost portion of State Road A1A in Miami). She died with neither spouse nor children. Her Last Will and Testament appoints her brother, Errol Caswell (“Errol”) as personal representative.
As required by Florida law, he published a notice of creditors on June 7, 2017 and the creditors period expired on September 7, 2017, with no creditors filing a claim.
On January 5, 2018, Mr. Cantero filed a claim, arguing that he was a reasonably ascertainable creditor and, as required under a United States Supreme Court case and Florida law, he should have received actual service of the notice of creditors (NOT just a publication in the newspaper) and thus, his claim was not barred.
Errol testified in lower court that he searched the paperwork and found no claim from Mr. Cantero and, in fact, had talked with Mr. Cantero a couple of times and Mr. Cantero never mentioned anything regarding a claim. Mr. Cantero offered condolences and mentioned that he left some car parts in the garage (this was NOT the claim). Errol’s attorney testified that there were no car parts.
Mr. Cantero testified that he and the Decedent were in a romantic relationship and when the Golden Beach property was purchased in 1992, he claimed that he had paid all the monies for that property. The relationship was over in 1997 and he made no effort in the next 20 years to collect any money. He offered no evidence that he made a down payment or paid any money.
The appellate court determined that, at most, Mr. Cantero was a conjectural creditor and not a reasonably ascertainable creditor. Thus, he was not entitled to personal service of the claim. His claim was properly denied.
ADVICE: This case reminds practitioners of the consequences of not noticing a reasonably ascertainable creditor. The personal representative should NOT distribute the funds BEFORE noticing all creditors appropriately and handling filed claims. Remind the personal representative to make a “diligent search” for creditors. A diligent search will vary depending on each situation but, at least review unpaid bills, credit card statements, all mail, the checkbook or online bank account, and any and all of the decedent’s paperwork.
WORD OF THE WEEK: Conjectural creditor is a creditor determined without proof of sufficient evidence; a conclusion as to creditor status formed on a basis of incomplete information.
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