Resolution Of The Statute Of Limitations On A Claim Of A Known Or Reasonably Ascertainable Creditor Who Is Not Served With The Notice To Creditors

PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Resolution Of The Statute Of Limitations On A Claim Of A Known Or Reasonably Ascertainable Creditor Who Is Not Served With The Notice To Creditors

ISSUE: In Jones v. Golden, 2015 Fla. LEXIS 2153 (Fla. 10/1/15), the Florida Supreme Court resolved the issue regarding whether the claim of a creditor who is not served with a copy of the notice to creditors but whose claim is known or reasonably ascertainable is barred under §733.702(1), F.S., if not filed within three months after the first publication of the notice to creditors absent an extension, or whether the claim is timely if filed within two years of the decedent’s death under §733.710, F.S.

HOLDING: The claim of a known or reasonably ascertainable creditor who was never served with a copy of the notice to creditors is timely if filed within two years of the decedent’s death. Further, because the limitations periods in §733.702 are inapplicable under such circumstances, it is not necessary for the creditor to seek an extension of time under §733.702(3) since that section applies only to claims that are untimely under §733.702.  The court approved the decision of the Fourth District in Golden v. Jones, 126 So. 3d 390, 390 (Fla. 4th DCA 2013).

REASONING: Section 733.702(1), Florida Statutes, provides two distinct and different limitations periods for the filing of claims against an estate: one for creditors “required to be served with a copy of the notice to creditors,” i.e., known or reasonably ascertainable creditors, and a second for unknown and not reasonably ascertainable creditors (hereinafter “unknown creditors”). The limitations period applicable to unknown creditors, set forth in section 733.702(1), begins to run upon publication of the notice to creditors and ends three months after the date of the first publication.

Creditors who are known or reasonably ascertainable need not rely on publication for notice of the pending administration of an estate. Section 733.2121(3)(a) requires a personal representative to “promptly serve a copy of the notice” on those creditors who are known or reasonably ascertainable after a diligent search. The limitations period applicable to known or reasonably ascertainable creditors does not begin to run until service is perfected. Once served with a copy of the notice, a known or reasonably ascertainable creditor must file any claim within the later of “3 months after the time of the first publication of the notice to creditors or . . . 30 days after the date of service on the creditor . . . .” § 733.702(1), Fla. Stat.

Under the plain language of section 733.702(1), where a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the applicable limitations period never begins to run and cannot bar that creditor’s claim. “[A]s to any creditor required to be served with a copy of the notice to creditors,” the limitations period can only be triggered by “service on the creditor” of the required notice. § 733.702(1), Fla. Stat. A known or reasonably ascertainable creditor is absolved from the limitations of section 733.702(1) by virtue of the fact that the personal representative failed to serve the creditor with the required notice. The only instance in which a known or reasonably ascertainable creditor is required to file any claims before the expiration of the three-month window after publication of the notice is where the last day of the three-month window occurs more than thirty days after service of the required notice.