A debt owed by a deceased person will not automatically be waived. Generally, a deceased person’s outstanding debts must be paid from the estate before assets are distributed to beneficiaries.
If you are a creditor of a deceased person, Florida law requires you to follow a specific process for making a claim against the probate estate. This process applies when the personal representative has opened a probate case for the deceased person. Understanding how to proceed when making a claim against a Florida estate can help you protect your rights and preserve your opportunity to recover the amount owed.
The following overview explains the general process creditors must follow to make a claim against a deceased person’s probate estate. Acting promptly and complying with Florida’s probate requirements can help preserve a valid claim and improve the likelihood that you will be paid for the outstanding debt.
Florida’s Probate Clock Starts Running
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When a probate estate is opened by the Personal Representative of the deceased, creditors of the deceased are generally notified of their right to file a claim against the estate for unpaid debts of the deceased. Under Florida Statute § 733.702, creditor claims against the estate of the deceased must be filed within the later of:
- Three months after the first publication of the Notice to Creditors; or
- Thirty days after receiving the written notice by mail.
The exceptions to this rule are the funeral and burial expenses of the decedent and claims to preserve assets in the estate. This includes any claims for damages.
While the deadline to file a claim is usually based on the date of first publication of the notice to creditors, published and mailed notices are usually published and mailed within a short time of each other. Thus, locating the probate case and timely filing a formal written claim with the Personal Representative is critical.
What Florida Creditors Need to File
A creditor’s claim under Florida law, as noted above, must be filed and verified under Florida Statute § 733.703. The claim must clearly set forth the basis of the creditor’s debt as well as the amount due. Supporting documentation for a claim by a creditor would include copies of contracts, invoices, account statements, payment records as well as security-interest documents.
As stated in 733.703, the claim should outline the basis of the debt, how the estate is responsible for the debt, and the amount the Creditor is seeking to be paid by the Estate.
What Happens After a Claim Is Filed?
Filing a creditor claim does not ensure that a creditor will receive payment from the estate of a deceased person.
The personal representative will then review the claim and determine whether or not to pay it. A claim can be objected to by the estate or by any other interested party. The process for an objection to a claim and for an independent action by a claimant after an objection is set forth in Florida Statute § 733.705.
Fla. Stat. § 733.705 outlines the short time allowed for an objection to a claim by an estate and the independent action that follows such an objection by the claimant.
For example, an objection to a claim by the estate for debts of the deceased person could be that there is no valid debt, that the amount of the claim as filed is incorrect, or that the decedent was not responsible for the debt to the creditor.
However, if an objection to a claim by the estate is served to the claimant then he or she will have a limited time in which to file an independent action by the creditor for the recovery of such claim against the estate. That time period is generally 30 days after service of the objection to the claim; however, there are certain extensions and additional circumstances which are set forth in the statute and would allow for additional time.
Missing this deadline means that a creditor may have no further opportunity to collect on their claim against the deceased person’s estate.
The Two-Year Limitation
As discussed above, the two-year limitation of action contained in Florida Statute § 733.710 establishes a two-year bar to the right of claim by the estate of the decedent and the personal representative and the
Note that the normal two year statute of limitations found in §733.710 creates an obstacle to the recovery of the claim by the creditors of the estate of the decedent and the personal representative and the heirs, etc. of the decedent two years after the decedent’s death. However, this normal statute of limitations is found to be overridden by a special statute in §733.710 which allows a creditor’s claim that has been filed within two years of the decedent’s death to still be payable by the estate even though two years have passed to file the claim by the creditor where such claim has not been paid by the personal representative of the estate within the time set forth in §733.705 or has been otherwise paid or settled by the personal representative of the estate within such time.
However, there is a very important exception to the two-year limitation of action to file a claim against a deceased person’s estate. Specifically, Fla. Stat. § 733.710 does establish a two-year limitation of action to file a claim, and a right to file a claim by the personal representative and by heirs, etc., to recover against the estate of a decedent. Nevertheless, Fla. Stat. § 733.710 also contains an important exception for important probate claims. The exception for such very important probate claims is established for claims that have been timely filed as a claim by a creditor within two years of death and either have not been paid or have been disposed of by the personal representative within the time permitted under Fla. Stat. § 733.705.
Again, don’t confuse the 2 year statute of limitations for a claim by a creditor against the estate of a deceased person in § 733.710 with the special Notice to Creditors requirement found elsewhere in the statutes.
Again, note that the time for filing a claim against a deceased person’s estate to collect payment of a debt by a deceased person typically lapses long before two years have passed to challenge such a debt as a late claim by a creditor.
The date that is applicable will be found in the probate records and will be fact specific.
What If the Estate Disputes the Debt?
Important – Not all Claims are Created Equal. Even if you believe you have a legitimate Claim against an Estate, it will not automatically be allowed by the Personal Representative. The Estate and/or others have a right to object to your Claim on several grounds including but not limited to whether the decedent was ever obligated to pay the Claim, the amount that the Claimant is entitled to receive, whether the filing of the Claim was proper and whether the notice to creditors was proper.
As an example, if a contractor completed $15,000.00 worth of work and was left unpaid when the homeowner passed away, the contractor would file a proper probate claim for that amount of money. His contracts, invoices, payment records and proof of filing the claim would be part of the documentation to support his claim for payment.
As noted above, most claims are subject to the procedures outlined above for paid contract claims, including for example amounts owed as loans, open accounts with businesses, home improvement contracts and similar obligations. However, as set forth below, liens and obligations that are secured by interest in property are subject to their own rules and specific time limitations.
