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.