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.
On February 29, 2012 the Second District Court of Appeals issued an opinion involving the appointment of a Personal Representative (sometimes referred to as an executor or administrator) for the estate of a decedent who died without a Will. When a decedent has made a valid Will, this document will normally nominate a person or bank to be Personal Representative. What happens when there is no Will?
The Florida Probate Code specifies that there is a priority of preference that is to be followed in determining who will be Personal Representative. A surviving spouse comes first, followed by a person who is selected by a majority in interest of the heirs. A “majority in interest” means a person or combination of people who get at least 51% of the value of the assets of the estate. The third preference is an heir nearest in degree (meaning essentially the closest relative or someone from a group of people who all have the same relationship to the decedent).
Your estate plan should be based on your desires, family situation, estate size, and on applicable law, at the time the plan is devised and the will is executed. A plan that assumes the occurrence of particular future events may produce undesirable results if the planned future events do not occur. For example, a simple will may be sufficient to handle your estate planning needs but a change in your family or financial situation will have a significant impact on your plan. Therefore, we strongly recommend a periodic review of your estate plan in order to keep abreast of changes in both the law and your own personal situation.
Via NEWS-PRESS – LEE COUNTY, Fla.- Written by Nancy Oben firstname.lastname@example.org
For Thomas E. Shipp Jr., some of his best days are when clients write him a note saying thank you.
Shipp, an attorney with more than 30 years of experience in wills, trusts and estate planning, said he works with families dealing with difficult situations when a loved one passes.
Shortly after her murder acquittal, Casey Anthony filed for Chapter 7 bankruptcy protection in the Middle District of Florida in January of 2013. According to her bankruptcy schedules, Anthony’s total amount of debt was close to $800,000; most of which were attorney fees. She listed that she was unemployed, and claimed about $1,000 of total assets.
In a normal Chapter 7 bankruptcy case, a trustee is appointed to administer the bankruptcy estate. Pursuant to section 541 of the Bankruptcy Code, the bankruptcy estate consists of all legal and equitable interests of the debtor in property at the time of the bankruptcy filing. State law then allows a debtor to exempt, or keep, a certain amount of property from the bankruptcy estate. In Chapter 7 bankruptcy the Debtor would then have a choice to either surrender his or her non-exempt assets, or to buy them back from the bankruptcy estate. Since Casey Anthony had very few assets, most of her property would have been exempt. She would eventually receive her discharge of her debt, while paying very little back to the bankruptcy trustee.