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While the notion of due process is a bedrock principle of this country’s jurisprudence, the issues of who must receive notice, the timing of the notice, and the contents of the notice have sparked endless litigation, and Florida probate law is no exception.  Florida probate law requires a personal representative of an estate to provide notice of the administration of the estate and the deadline to file claims against the estate. Notice takes two forms, to wit: constructive notice by publication and actual notice through service. See Soriano v. Estate of Manes, 177 So. 3d 677, 680, n. 4. (Fla. 3d DCA 2015) (noting that publication notice is sufficient for creditors who are not known or “reasonably ascertainable,” but for those creditors that are known or “reasonably ascertainable,” due process requires actual notice), citing Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 489 (1988).

To place the world at large on notice of the administration of the estate and to trigger the deadline to file claims under section 733.702, Florida Statutes, a personal representative is required to promptly publish a notice to creditors for two consecutive weeks in a newspaper published in the county where the estate is being administered. Fla. Stat. § 733.2121 (1) and (2).

While constructive notice by publication is relatively straightforward, identifying the creditors entitled to actual notice has become fertile ground for litigation in Florida. Once a claim is proven to be untimely under section 733.702, Florida Statutes, the burden shifts to the creditor to show why an extension of time of the claims period is required under the circumstances. Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98, 100–01 (Fla. 3d DCA 1992).

Accordingly, to assert an otherwise untimely claim, creditors often argue that they qualified as a “reasonably ascertainable creditor” entitled to actual notice and that the personal representative’s failure to serve the creditor with actual notice tolled the deadline to submit the claim against the estate.

“If the personal representative fails to serve notice upon a known or reasonably ascertainable creditor, the creditor may seek an extension of time in which to file his claim based on fraud, estoppel or insufficient notice of the claims period.” Simpson v. Estate of Simpson, 922 So. 2d 1027, 1029 (Fla. 4th DCA 2006), citing Fla. Stat. § 733.702(3).

A personal representative must promptly serve reasonably ascertainable creditors with a copy of the notice to creditors. Fla. Stat. § 733.2121 (3)(a). To identify such creditors, a personal representative is compelled to conduct a diligent search for the creditors’ names and addresses regardless of whether the claims are unmatured, contingent, or unliquidated. However, impracticable and extended searches are not required. Case law also indicates that both the identity of the claimant and the claim must be reasonably ascertainable. Strulowitz v. Cadle Company, II, Inc., 839 So. 2d 876, 880 (Fla. 4th DCA 2003).

Conjectural creditors are not entitled to actual notice. See e.g. Cantero v. In re: Estate of Jane Althea Caswell, 44 Fla. L. Weekly D 2456 (Fla. 3d DCA October 2, 2019)(creditor’s vague inquiries were insufficient to place the personal representative on notice of the creditor’s claim to a house, particularly where the creditor admitted that there were no documents in his possession or the decedent’s possession to substantiate the creditor’s claim); Strulowitz, 839 So. 2d 880 (“The personal representative has no duty to speculate and conjecture that someone might possibly have a claim against the estate.”).

However, a creditor is not considered conjectural where its claim has been asserted in litigation but has not yet been reduced to judgment because the events giving rise to the claim have already occurred. See e.g., In re: Estate of Ortolano, 766 So. 2d 330, 332 (Fla. 4th DCA 2000) (where the personal representatives knew of pending litigation against the decedent, they had actual knowledge of the claim, and thus were required to provide the creditor with actual notice of the claim).

As one Florida court noted, “[r]easonable people could differ as to what constitutes a reasonable search and what entails impractical or extraordinary effort.” Strulowitz, 839 So. 2d 881. As a result, whether a creditor qualifies as a “reasonably ascertainable creditor” is a fact-driven issue that is ordinarily resolved through an evidentiary hearing. Faerber v. D.G., 928 So. 2d 517, 518-9 (Fla. 2d DCA 2006). Nevertheless, the issue of a reasonably ascertainable creditor can be addressed through affidavits without an evidentiary hearing where “the affidavits filed by the parties can be reconciled and are not in conflict on the material facts.” Soriano v. Estate of Manes, 177 So. 3d 677, 680, n. 4. (Fla. 3d DCA 2015).

Wide discretion is afforded to the trial court in determining whether a creditor is “reasonably ascertainable.” The trial court’s determination in that regard is reviewed by appellate courts under an abuse of discretion standard, meaning “discretion is abused only where no reasonable person would take the view adopted by the trial court.” Strulowitz, 839 So. 2d 881.

Because failing to timely assert a claim against an estate under section 733.702, Florida Statutes, can sometimes have a draconian effect upon the financial fortunes of creditors, the issue of a whether a creditor is genuinely “reasonably ascertainable” will continue to be a hotly contested topic of probate litigation in Florida.

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