One of the purposes of the probate process is to manage debts owed to creditors of the deceased andto see that creditors are paid – to the extent that is legally and financially possible. The legal procedurefor probate provides a process to manage and cut off claims against the deceased that are filed morethan three months after the publication of a Notice To Creditors in the newspaper, or more than thirtydays after service of the Notice on a creditor, if that is later. Most debts of the deceased are barred andunenforceable after two years from the date of death. Recently the Second District Court of Appeals inFlorida issued a ruling that emphasizes the need to properly follow the claim procedure if you are owedmoney by the deceased. Watch the dates as you read the following paragraph.
Edward Caulfield died on December 18, 2006. A probate administration was started and on November16, 2007, a Notice To Creditors was published. The court opinion dos not explain why so much timewent by before publication. Under Florida law the end of the creditor claim filing period was February16, 2008. A creditor, Mr. Lubee, filed a late claim on December 18, 2008, ten (10) months after theclose of the claim filing period. Note, this is the point after which the two year bar on collection of adecedent’s debts also takes effect. Then Mr. Lubee sued the estate on February 5, 2009, no doubtbecause payment had not been forthcoming. Judgment was entered in favor of the estate at the CircuitCourt level and affirmed on appeal. Why? Because Mr. Lubee didn’t file a claim within the three monthsand never asked the probate court for permission to file a late claim within two years of the death ofMr. Caulfield.
What can we learn from this case? First, if a deceased person owes you money, get legal advice about how to enforce that claim. Second, as a creditor, time is your enemy. You can even file a caveatwith the court to get notice when a probate administration is started, before a Notice To Creditors ispublished. If you are filing late, you must first ask for the Court’s permission. Third, if Mr. Caulfield hada revocable trust based estate plan and the trustee saw no need to file a probate and if Mr. Lubee fileda suit within two years of Mr. Caulfield’s death, he might have been able to collect. Trusts do not bnefitfrom the two year cutoff in probate law.