ADDRESSING THE ISSUE OF CREDITOR CLAIMS FROM THE VIEWPOINT OF THE PERSONAL REPRESENTATIVE
One of the significant issues a Personal Representative of an Estate needs to address is that of the claims against the Estate by creditors. To administer an estate in an orderly manner, the Personal Representative must ascertain what debts and claims are to be paid by the estate because no assets should be distributed until the Personal Representative is certain that these debts and claims can be paid.
Florida Statute 733.212 states that “the Personal Representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent or unliquidated.” A diligent search must be undertaken, and such a search depends on the familiarity of the Personal Representative with the decedent’s affairs. It should include a careful review of the defendant’s financial records.
Notice of Administration must be given to creditors. Formerly, it could be done by publication. However, in 1989, the statute was amended to require actual service of a copy of the notice of administration on certain creditors. This notice has to be given to reasonably ascertainable creditors. This was as a result of the case of Tulsa Professional Collection Services, Inc. v Pope, 485 U.S. 478, 108 S. Ct.; 1340, 99 L.Ed. 2d 565 (1988).
However, the Court has interpreted the Pope as being inapplicable when the claimants know of the opening of the Estate at the time of its beginning but failed to timely file a claim. After letters are issued to the Personal Representative, it is his or her responsibility to publish a notice to creditors advising all persons having claims or demands against the estate to file their claims with the court “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 a copy of the notice to creditors, 30 days after the date of service.
Unless the creditor’s claims are barred by the two-year statute of non-claim, the Personal Representative is required to cause the notice to creditors to be published “promptly” after the issuance of letters. Then, Proof of Publication of the notice to creditors must be filed with the court within 45 days of the first publication.
If a creditor is reasonably ascertainable, the personal representative shall promptly serve a copy of the notice to creditors on that creditor. However, service is not required on any creditor who has filed a claim, been paid in full, or is listed in a Personal Representative’s proof of claim.
The failure to serve a reasonably ascertainable creditor prevents the claim from being barred until the expiration of the two year claims period. A
The personal representative is required to file a verified “Statement Regarding Creditors” within four months after the first publication of the notice to creditors which evidences the diligent search and names the creditors with their addresses. It must also indicate whether each was served a notice to creditors or otherwise received actual notice. Claims must be filed with the court no later than the later of three months after the time of the first publication of notice to creditors or 30 days after the date of service of the notice o creditors on the creditor.
If a claim is not filed before the expiration of the three-month/thirty-day period, it is barred. 733.710 provides an alternate limitation period of two years after the person’s death notwithstanding any other provisions.
A personal representative should investigate all claims and may file an objection to the claims within 4 months from the first publication of the notice to creditors, or within 30 days from the timely filing of the claim, whichever occurs later. A copy of the objection filed must be served on the claimant by registered or certified mail or by personal service.
The above provides a road map of the initial stages of the issue of claims from the personal representative’s viewpoint. In order to address the particulars of this process, an individual who has been given the significant responsibility of being a personal representative should contact an attorney to ensure this most important aspect of the Probate process is addressed prior to distributing any assets and, preferably, shortly after the individual has passed, in order to begin the probate process.
