Souder v. Malone

Souder v. Malone, --- So.3d --- (Fla. 5th DCA 2014), 2014 WL 3756356

Well it looks like we have another district weighing in on the debate over the timeliness of a creditor's claim filed by a known or reasonably ascertainable creditor after the three-month period following publication of the notice to creditors. 

Back in October of 2013, the 4th DCA in Golden v. Jones held that where a known or reasonably ascertainable creditor is not served with a copy of the notice to creditors, that creditor's claim is timely if filed within two years of the decedent's death.  The Golden decision is in conflict with the 1st and 2nd DCAs' Lubee and Morgenthau decisions, which held that even a reasonably ascertainable creditor who was not served with a notice to creditors is required to file a claim within the three-month publication period.

The 5th DCA has now taken a stance of the issue, siding with the 1st and 2nd DCAs.  Here, a creditor filed three separate claims after the three-month publication period had expired.  The personal representative filed a motion to strike the claims as untimely, and the probate court entered an order striking the claims since the creditor filed them after the three-month creditors' claim period had expired and the creditor had failed to petition the court for an extension of time in which to file his claims. 

The Court held that the result of reading subsection (3) of Florida Statutes § 733.702, which allows a creditor to seek an extension of time to file a claim, with section (1) which defines the time period for a timely claim, is that where a personal representative has failed to serve a copy of the notice to creditors on a known or reasonably ascertainable creditor, that creditor's remedy is to petition the probate court for an extension of time.

For practitioners in the 5th DCA, the Court summed up its interpretation of when claims need to be filed quite nicely:  
(1)  Creditors who are served a copy of the notice to creditors are required to file their claims within 30 days following service.
(2)  Creditors who are not served a copy of the notice to creditors are required to file their claims within the three-month window following publication, or alternatively, may seek an extension from the probate court pursuant to § 733.702(3) within the two-year window set forth in § 733.710.

Comments

  1. UnknownAugust 26, 2014 at 9:36 AM

    Great post Jenna. Very informative summary. Thank you! (Mary Karr)

    ReplyDelete

Post a Comment

Popular posts from this blog

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and stamped the will.  The testator
Read more

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, &quo
Read more