• Trust LitigationCreditor Claims

    One of the most important duties of a Personal Representative is to ascertain what debts and claims are to be paid by the Estate. Valid claims against the Estate and Trust must be paid before the assets of the Estate and Trust can be distributed to the beneficiaries. 

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    To expedite the settlement of the Decedent’s Estate, the Probate Code (inFlorida) provides a very specific procedure for the notification of creditors and potential claimants, for the filing of claims against the Estate, and for objecting to claims that are not believed to be valid.

    The procedures set forth for filing claims and the claims themselves are often a source of litigation in Probate.

    The Probate Code requires that a Notice to Creditors be published once a week for two (2) consecutive weeks in a newspaper published in the county where the Estate is being administered.

    All reasonable ascertainable creditors of the Decedent’s Estate are required to be served with a Notice to Creditors.

    The Notice to Creditors contains the name of the Decedent, the file number of the Estate, the address of the Court, the name and address of the Personal Representative and attorney, the date of the publication, and a notification that creditors must file timely claims against the Estate with the Court or be forever barred.

    If a claim against the Decedent’s Estate is not filed within three (3) months after publication of the Notice to Creditors, or within thirty (30) days after the date of service of the Notice to Creditors on a reasonably ascertainable creditor, the claim is forever barred.

    A Courtmay extend the time to file a claim only if the claimant can prove that the failure to file a timely claim was the result of fraud, estoppel or insufficient notice of the claims period.

    Absolutely no claim can be filed against the Estate more than two (2) years after the Decedent’s death regardless of whether the foregoing claim procedures are followed.

    Examples of claims that are required to be timely filed or be forever barred include any agreement with the Decedent which is intended to be enforced against the Estate (such as nuptial agreements, real estate sale contracts, buy-sell agreements, etc.), last illness expenses, lawsuits against the Decedent (both pending and potential lawsuits), outstanding credit card debts, claims for alimony and support, and funeral expenses.

    The Personal Representative or any interested person in the Estate may object to a claim by filing a written Objection within four (4) months of the first publication of Notice to Creditors or within thirty (30) days after the timely filing of a claim, whichever occurs later.

    If no Objection is filed, the claim must be paid.  If an Objection is filed, the claimant has thirty (30) days after being served with an Objection to file an independent action to establish the validity of the claim.

    Failure to file an independent action within the thirty (30) day period will result in the claim being barred.  If an independent action is timely filed by the claimant, the interested parties will litigate the validity of the claim.

    All valid claims are required to be paid within one (1) year from the date of the first publication of the Notice to Creditors.

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    If you or a loved one needs help with a situation involving one of these areas, please contact Thomas N. Silverman, P.A. at 561.775.7500 (24 hours) or info@FloridaProbateCounsel.com.

    Thank you for contacting our firm. One of our associates will be in contact with you shortly. If the matter is urgent, please call our office directly at 561.775.7500 to speak with an attorney.