PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Extension Of Time To File A Late Claim

Sec.733.702(1), F.S. reads in relevant part that “[i]f not barred by s. 733.710, no claim or demand against the decedent’s estate that arose before the death 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 . . . .”

Due process requires the personal representative to promptly serve a copy of the notice to creditors on all creditors of the decedent who are reasonably ascertainable or known to ensure actual notice of the running of the non-claim period. See, North County Co. v. Goforth (In re Estate of Ortolano), 766 So. 2d 330 (Fla. 4th DCA 2000) citing,Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 491, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1998); Golden v. Jones, 126 So. 3d 390 (Fla. 4th DCA 2013).

If a known or reasonably ascertainable creditor was not served with a copy of the notice to creditors, the statute of limitations set forth in §733.702(1), F.S. never begins to run and the creditor’s claim is timely if it is filed within two years of the decedent’s death. See, Golden v. Jones, supra. However, if the claim’s period provided in §733.702(1), F.S. has expired, the creditor must seek an extension of time in which to file a claim.Refer to §733.702(3), F.S. The court’s role is limited to a determination as to whether there was fraud, estoppel or insufficient notice of the claims period and not to determine the validity of the claim because the merits of the claim are determined in an independent action. See, Simpson v. Estate of Simpson, 922 So. 2d 1027 (Fla. 5th DCA 2006). But see, Golden v. Jones, 126 So. 3d 390 (Fla. 4th DCA 2013) wherein the court stated in dicta that when the claim is timely under §733.702(1), F.S., it would be unnecessary for a reasonably ascertainable creditor to file a motion for extension of time under §733.702(3), F.S.

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. Refer to §733.702(3), F.S.

A claimant may bring an independent action or declaratory action upon a claim which was not timely filed only if the claimant has been granted an extension of time to file the claim and the claim is filed within two years after the date of death. Refer to §§733.702(3), 733.705(6) and 733.710(1), F.S. See also, Lubee v. Adams, 77 So. 3d 882 (Fla. 2nd DCA 2012).