Estate creditors must be aware of critical deadlines for filing their claim against an estate or risk having their claim barred forever.
The Florida Probate Code (the “Code”) contains the requisite timeframes for filing a claim against an estate. In particular, the Code provides that a claim or demand against the decedent’s estate that arose before the death of the decedent will be binding on the estate, on the personal representative, or on any beneficiary only if such claim is 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. § 733.702(1), Fla. Stat. (2013).
Additionally, there is also a two-year cutoff for creditor’s claims. If a claim is not filed within two years of the decedent’s death, that claim shall be forever barred. Such a two-year cutoff applies to all probate proceedings, regardless of whether or not letters of administration have been issued. § 733.710(1), Fla. Stat. (2013).
Even if you are aware of these critical deadlines you may be apprehensive that an estate may be opened and administered without your knowledge or that a will may be admitted to probate without your knowledge, thereby jeopardizing your chances of collecting on your debt.
In that case, you should avail yourself of the Florida’s caveat procedure. The filing of a caveat with the court creates a right to notice in that the clerk of court must notify you when a certain probate administration is commenced.
The timing of filing of a caveat depends on the filer. The Florida Probate Code recognizes two classes of caveators, a creditor caveator and a non-creditor caveator. If the caveator is a creditor, then that creditor may only file a caveat after the decedent’s death. However, if the caveator is any other interested person such as a relative, a friend, a neighbor or any other person who may reasonably be expected to be affected by the outcome of the probate proceeding, then in that case, this other caveator may file a caveat at any time, either before or after the decedent’s death. One who files a caveat prior to decedent’s death should be aware that such a caveat will expire two years after such filing. So if that ailing person whose illness necessitated the filing of a caveat in the first place does not actually die within the two years since the caveat was filed, that caveator will have to refile such a caveat once it expires. § 731.110, Fla. Stat. (2013).
The two classes of caveators are further differentiated by the Florida Probate Code based on the type of notice each receives. Where the caveat is filed by a non-creditor caveator, the court will not be able to admit the will to probate or to appoint a personal representative without first serving that caveator with formal notice of the petition for administration. On the other hand, when a caveat is filed by a creditor caveator, then the court simply provides that caveator with notice of the date letters of administration have been issued and the contact information for the personal representative. Id.
Finally, the Florida Probate Code does require a non-resident caveator to either be represented by a Florida attorney or have a Florida resident who resides in the county in which the caveat is filed designated as his or her agent for service purposes. Id.
By knowing the deadlines for filing a claim against an estate and by utilizing the Florida’s caveat procedure, an estate creditor can rest assured that his or her claim will be preserved.