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Ultimate Guide to Florida Probate Creditor Claims

Florida Probate: Filing a Claim Against a Florida Estate

One of the most common issues in Florida estates, is how to obtain money owed by an estate. In Florida probate, courts often refer to these as “creditor claims.”  There are multiple statutes that govern claims, which are briefly discussed below.

What is a Personal Representatives responsibility for notifying potential claimants?

First, when a person dies, the personal representative of the estate has a duty to notify ascertainable creditors of the Estate. Additionally, the Personal Representative must publish a “Notice to Creditors.” The Notice to Creditors must contain the name of the decedent, the file number of the estate, the designation and address of the court, the name and address of the personal representative and of the personal representative’s attorney, and the date of first publication of the notice of creditors. The notice shall require all creditors to file claims against the estate with the court, within the time provided by law. Fla. Prob. R. 5.241

Form and Manner of Presenting Claim to a Florida Estate

First, Florida Statute Section 733.702 outlines the initial process for filing a claim in an estate.

(1) A creditor shall file a written statement of the claim. No additional charge may be imposed by a claimant who files a claim against the estate.

733.703, Fla. Stat.

Time Limitation on Filing a Claim Against a Florida Estate

It is important to note that in Florida, there is a time limitation on bringing a claim against an estate. That time limitation is discussed in Florida Statute Section 733.702:

(1) If not barred by s. 733.710, no claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its political subdivisions, even if the claims are unmatured, contingent, or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages, including, but not limited to, an action founded on fraud or another wrongful act or omission of the decedent, is binding on the estate, on the personal representative, or on any beneficiary unless 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, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise. The personal representative may settle in full any claim without the necessity of the claim being filed when the settlement has been approved by the interested persons.

* * * *

(3) Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period. No independent action or declaratory action may be brought upon a claim which was not timely filed unless an extension has been granted by the court. If the personal representative or any other interested person serves on the creditor a notice to file a petition for an extension, the creditor shall be limited to a period of 30 days from the date of service of the notice in which to file a petition for extension.

733.702, Fla. Stat.

What happens if an Estate does not timely object to a statement of claim in Florida?

The Personal Representative forfeits the right to object and all objections are considered abandoned. Florida Statutes 733.705 governs objections and sets forth a bright-line rule that after the time for objection has expired, the objection is abandoned. Fla. Stat. 733.705. Abandonment is severe, as the court is thereafter precluded from “reject[ing] the claim or to determine disputed questions of fact that have to do with or which may conclude the question of [its] validity.” Rainier v. Calhoun, 510 So. 2d 999, 1000 (Fla. 3d DCA 1987) citing Goggin v. Shanley, 81 So.2d 728, 729 (Fla.1955) (personal representative asserted statute of limitations bar to claim, made by motion to strike a petition to enforce claim. Court ordered personal representative to pay claim because the claim could not be ruled upon by probate judge where personal representative had not filed timely objection to claim); Barnett Bank v. Estate of Read, 493 So.2d 447, 449 (Fla.1986). Put another way, if the personal representative does not object to a creditor’s timely filed claim, the objection is abandoned, and the claim is deemed admitted. Goggin v. Shanley, 81 So.2d 728 (Fla. 1955); Ranier v. Calhoun, 510 So.2d 999 (Fla. 3d DCA 1987); Fla. Stat. 733.705 (“The failure to serve a copy of the objection constitutes an abandonment of the objection.”)

Interestingly, a trial court lacks all authority to relieve a personal representative from an order by the probate court compelling payment of a claim for which an objection was abandoned. Zayas-Hood v. Jusino, 44 So. 3d 626 (Fla. 1st DCA 2010) (The appellate court held that “the trial court lacked authority to relieve Appellees from the order compelling payment of the claim. . .  We also agree with Appellants that Florida Rule of Civil Procedure 1.540 was not available to relieve Appellees from the order compelling payment.”) This is because it is the job of the personal representative, not the court, to administer the estate and uphold the fiduciary duties owed thereto. Barnett Bank v. Estate of Read, 493 So.2d 447, 449 (Fla.1986)..

What happens if an Estate objects to a statement of claim in Florida?

Once the claim is filed, the Personal Representative can either pay the claim or object to it. If the Personal Representative (or other interested person) files an objection to the claim, the creditor must follow a critical second process. This is often missed by many claimants and there is a fairly short time window.In order to proceed with the claim, a claimant must file an Independent Action.

If there is an objection to the claim, Florida Statutes Section 733.705(5) directs the process for continuing to pursue a creditor claim and requires that the creditor file an Independent Action:

(5) The claimant is limited to a period of 30 days from the date of service of an objection within which to bring an independent action upon the claim, or a declaratory action to establish the validity and amount of an unmatured claim which is not yet due but which is certain to become due in the future, or a declaratory action to establish the validity of a contingent claim upon which no cause of action has accrued on the date of service of an objection and that may or may not become due in the future, unless an extension of this time is agreed to by the personal representative in writing before it expires. For good cause, the court may extend the time for filing an action or proceeding after objection is filed. No action or proceeding on the claim may be brought against the personal representative after the time limited above, and the claim is barred without court order. If an objection is filed to the claim of any creditor and the creditor brings an action to establish the claim, a judgment establishing the claim shall give it no priority over claims of the same class to which it belongs.

733.705, Fla. Stat.

The obvious question is: “What is an independent action?” The legislature choosing this phrase initially created some issues as to whether the claimant needed to file a separate “action” within the probate estate or in the general civil division of the court system. Despite the confusion, the general consensus is that “Independent Action” means filing an independent lawsuit in the civil division. See Williams v. Estate of Williams, 493 So. 2d 44, 45 (Fla. 5th DCA 1986).

All is not lost if the separate independent action accidentally filed in the Probate Division instead of the Civil Division. The Fourth District Court of Appeals recently addressed this issue in West v. West, 126 So. 3d 437 (Fla. 4th DCA 2013) and found that the case should merely be transferred to the correct Civil Division.

What happens if you fail to file an independent action in Florida?

If the creditor fails to bring an independent action, the claim is barred without court order. This may seem like a harsh result, but there is a strong public policy to administer estates

What happens if a party dies while litigation is already pending?

There is a great Florida Bar article that addresses this issue in detail and can be reviewed here

Can you collect attorney’s fees for proving a claim against an Estate in Florida?

In Florida probate actions, there is the possibility of recovering attorney’s fees and costs. Florida Statute Section 733.106 governs attorney’s fees and costs in probate litigation:

(1) In all probate proceedings, costs may be awarded as in chancery actions.

(2) A person nominated as personal representative, or any proponent of a will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive costs and attorney fees from the estate even though probate is denied or revoked.

(3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.

(4) If costs and attorney fees are to be paid from the estate under this section, s. 733.6171(4), s. 736.1005, or s. 736.1006, the court, in its discretion, may direct from what part of the estate they shall be paid.

(a) If the court directs an assessment against a person’s part of the estate and such part is insufficient to fully pay the assessment, the court may direct payment from the person’s part of a trust, if any, if a pour-over will is involved and the matter is interrelated with the trust.

(b) All or any part of the costs and attorney fees to be paid from the estate may be assessed against one or more persons’ part of the estate in such proportions as the court finds to be just and proper.

(c) In the exercise of its discretion, the court may consider the following factors:

  1. The relative impact of an assessment on the estimated value of each person’s part of the estate.
  2. The amount of costs and attorney fees to be assessed against a person’s part of the estate.
  3. The extent to which a person whose part of the estate is to be assessed, individually or through counsel, actively participated in the proceeding.
  4. The potential benefit or detriment to a person’s part of the estate expected from the outcome of the proceeding.
  5. The relative strength or weakness of the merits of the claims, defenses, or objections, if any, asserted by a person whose part of the estate is to be assessed.
  6. Whether a person whose part of the estate is to be assessed was a prevailing party with respect to one or more claims, defenses, or objections.
  7. Whether a person whose part of the estate is to be assessed unjustly caused an increase in the amount of costs and attorney fees incurred by the personal representative or another interested person in connection with the proceeding.
  8. Any other relevant fact, circumstance, or equity.

(d) The court may assess a person’s part of the estate without finding that the person engaged in bad faith, wrongdoing, or frivolousness.

733.106, Fla. Stat. (2016)

Contact Us:

PersanteZuroweste is an estate and trust litigation law firm.  We handle a variety of probate litigation matters throughout Florida, including will and trust contests, undue influence claims, lack of capacity claims, removal of personal representatives, etc. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666. You can also visit our Contact Us page.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities. We routinely handle matters in Pinellas, Hillsborough, and Pasco County.

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Bob Persante

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Bob is a trial lawyer in our Clearwater office handling securities litigation, complex business litigation, and estate litigation matters throughout Florida.

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