Understanding Notice to Creditors in a Florida Probate

Get The Legal Help You Need

By Gary M. Landau, Esq.

Call (954) 979-6566 Today
Understanding Notice to Creditors in a Florida Probate

What happens to the debts and unpaid bills of someone who passes away? And how long does a creditor have to make a claim against an estate? These are some of the most common questions our Law Office of Gary M. Landau receives after a family member passes away.

Many also worry whether the estate’s assets can be lost to unexpected claims or even false claims, and whether the person managing the estate–known as the personal representative–faces  personal liability for the deceased person’s outstanding claims. 

Fortunately, in Florida, there are strict protocols governing creditors of estates that protect everyone involved.

The most important is issuing what is known as a Notice to Creditors. This is a formal step in the probate process that sets deadlines for creditors to file claims and protects estates from indefinite financial exposure.

Read below to learn more about the notice to creditors in Florida probate, deadlines for filing claims, and how long creditors have to ask for their money during a Florida probate. 

Here are the most essential points about the notice process and Florida probate creditor claims.

Creditor Claims Summary At-a-Glance 

  • During a formal probate administration, the personal representative (PR) must notify known creditors and those suspected of having claims that the probate has been opened.
  • Creditors who receive this direct service typically have 30 days to file a claim.
  • The PR must also publish a public notice to inform other potential creditors about the estate.
  • The public notice, typically published in a local newspaper, marks the start of the general creditor claim period.
  • 3 months after this publication, most creditors must have filed their claims.
  • After someone has been deceased for 2 years, all their creditor claims are pretty-much eliminated.
  • Properly notifying known creditors limits the estates exposure to late creditors and protects the personal representative from any liability.

What Is a Notice to Creditors During Florida Probate?

Soon after a Florida probate proceeding starts, the personal representative must take steps to directly notify potential creditors that the person owing them money has died and that a probate has been opened, according to the Florida probate code. (This requirement can be found in Florida statute § 733.2121, which governs creditor claims in probate estates.)

This is done via a formal notice to creditors. 

The notice serves two primary purposes:

  • Informs potential creditors that the estate administration is underway so they can ask for the money owed them.
  • Sets clear filing deadlines for them to seek those payments from the estate’s assets.

Say, for example, that the deceased person recently purchased a roomful of furniture on credit from a nearby store. Relatives who know of the purchase must point that out to the PR, who sends the store the notice. Similarly, medical bills for people who cared for the person in their final days are reasonably known.

In addition, Florida law requires that the personal representative publish the notice in a local newspaper in the county where the probate has been opened. This published notice typically runs once a week for two consecutive weeks.

The first publication date is important because it starts the clock on the claims period for creditors who are not otherwise known, who may have unpaid bills or other financial interests owed to them.

Why Proper Notice Matters in the Probate Process

Providing proper notice to creditors and potential creditors is important for protecting the estate and the individual responsible for administering it. The personal representative has a legal duty, known as a fiduciary, to handle the deceased person’s estate according to Florida’s probate law.

If proper notice is not provided, problems may arise during or after the probate process:

  • Creditors can argue they received insufficient or no notice and demand their money long after the money has been distributed to all heirs.
  • The courts may allow these late claims under certain circumstances..
  • The personal representative could even face personal legal liability.

Strictly following the notice requirements under the Florida statute reduces the risk to the PR that creditor claims will surface after the probate process has otherwise ended.

How the Notice to Creditors is Published

The publication notice requirement must be followed exactly during the probate process.

Steps usually include:

  • Notice is published in a qualified local newspaper.
  • Filing deadline for creditor claims is stated clearly.
  • The probate case information and county where the estate is pending are included.
  • Other identifying information is stated, including the names of the personal representative and the attorney representing the estate.

After publication, newspapers provide the PR with an affidavit confirming the notice ran as instructed and that they have fulfilled this legal obligation.

Direct Notice to Known and Suspected Creditors

Publication reaches unknown creditors, but, as stated above, Florida probate law also requires direct notice to known creditors and reasonably suspected creditors.

These individuals or businesses must be given written notice through direct service, which is typically done by certified mail return receipt (so you have proof that it was received by the creditor) or by personal delivery.

The law requires that the PR undertake a “diligent search” to identify all of these creditors. This often includes monitoring the person’s mail or email accounts for credit card bills or other invoices. 

Note that creditors who receive this notice typically have a shorter deadline to file a claim than those learning about it via newspaper publication.

Length of Time Creditors Have to File a Claim in Florida Probate

One of the most common questions personal representatives ask their probate attorney is, “How long do creditors have to file a claim in Florida probate?” No one wants to hear from a creditor–especially one with a high-dollar claim–late in the process, when they’re already expecting a certain amount of inheritance or even after they have received it.

Under Florida statute, the Florida probate claim deadline is clearly delineated.

  • Known creditors who receive direct notice generally have 30 days after they are served to file a claim.
  • Unknown creditors who learn of the estate from the newspaper publication (or other means) typically have 3 months from the first date of publication.
  • After 2 years following the person’s death, nearly all claims are void. This is why some people choose to wait the 2 years before opening an estate, to eliminate any claims. Do note, however, that creditors can open an estate themselves during that time.

Some creditors agree to negotiate the amount downward, so this should almost always be attempted.

Exceptions to the Deadlines to File a Claim

There are a handful of exceptions when late claims can succeed beyond the initial 3-month period. For example, federal tax claims can remain valid if they are filed according to IRS deadlines, even if Florida’s probate-law deadlines have expired.

Healthcare providers and other “reasonably ascertainable creditors” who weren’t properly served with direct notice sometimes try to argue that their claims aren’t barred by the 3-month publication deadline. 

And the 2-year absolute bar does not preclude holders of a property’s mortgage or lien from later foreclosing on the property.

For all others, the law recognizes only a few specific grounds on which creditors can argue to the court to possibly extend the filing period, such as fraud.

What Happens After a Creditor Files a Claim?

Part of the job of the personal representative is to review all claims filed against the estate during the claims period.

The PR can accept the claim as valid or, instead, object to it.

Valid claims are paid out of the estate bank account, either in full or at a rate negotiated and agreed upon by all parties.

If objected, creditors can withdraw the claim, or they can initiate a lawsuit against the estate in Florida court within 30 days of being served the official rejection. 

What Happens If Creditors Miss the Filing Deadline?

Because the timeframes for filing creditors claims are extremely short in Florida, late claims are common.

If a creditor fails to file a claim before the relevant deadline passes, Florida statute generally prevents them from ever filing it. 

However, exceptions may exist in limited situations, such as those involving insufficient notice.

For example:

  • If a known creditor who should have received direct notice did not, they may argue the claim deadline should not apply. They may then have up to 2 years after the person’s death to rightfully make their claim.
  • If a creditor believes they should have been known, the Probate Court might review whether this was the case and also grant them the 2-year deadline.

When late claims appear, the Probate Court evaluates whether the personal representative satisfied the notice requirements under Florida probate law.

Priority of Payments in a Probate Estate

If it’s questionable whether the person’s estate has enough assets to cover all the creditor bills, claims should be paid in the order of the priority system set up by Florida law.

The order generally follows this list:

  • Administration costs
  • Funeral expenses
  • Debts and taxes with preference under federal law
  • Medical expenses from the final illness
  • Claims or debts related to family, child support arrearage, and business continuation
  • Secured claims tied to property
  • Other valid claims

Of course, if it’s clear the bills will outstrip assets, many people decide not to open an estate for the person in the first place. As mentioned above, creditors may still open the estate themselves in these situations.

Do note that certain properties may be protected from creditor claims. For example, Florida law protects the person’s home where they lived, known as homestead property, from creditors, allowing it to pass to family members outside of the creditor claims process.

FAQs About Notice to Creditors in Florida Probate

Here are some of the most common questions our law office hears from families about the claims process and creditor rights:

What is the purpose of a notice to creditors?

The notice to creditors exists to inform creditors that the probate proceeding has begun and establishes a deadline for them to file a claim against the estate.

Who must receive direct notice?

Written notice through direct service must be sent to all known creditors and those that could be reasonably suspected of being creditors.

What happens if a creditor files a claim?

If a claim is filed within the correct amount of time, the personal representative must review the claim and decide whether to pay the claim from the estate’s assets or object to the claim.

Can creditors file claims late, after the filing deadline?

Generally, no. Once the deadlines pass, late claims are usually barred, except in very limited circumstances.

What if the estate does not have enough assets to pay the claims?

If the estate lacks sufficient assets, Florida probate law sets an order of priority for how estate debts are addressed. In general, though, most people named as personal representatives for an estate that doesn’t have enough assets to pay outstanding bills generally don’t bother to open a probate.

Do secured creditors have additional rights?

Yes. Creditors such as a lender with a duly recorded mortgage on a property can still move to foreclose on a property whenever the mortgage isn’t paid. 

What happens if the personal representative does not provide proper notice to creditors?

If a known or suspected creditor isn’t directly notified, or if the PR doesn’t publish in the newspaper for the required time, the Probate Court may allow a creditor additional time to file their claim.

Do all estates require that notice be published?

In probate proceedings done as formal administration, publication notice in a newspaper is always required. 

Other types of probates, such as summary administrations, do not require any notice to creditors.

(See What are the four types of probate proceedings in Florida?)

Local Guidance for Coral Springs and Parkland Probate Matters

Probate cases where the deceased person lived in Coral Springs or Parkland are typically handled through the Broward County Probate Court. The Law Office of Gary M. Landau works on probates throughout the state of Florida but has especially widespread experience with the Broward County Court and its probate judges.

A probate attorney with experience in Broward County and in all of the numerous counties in Florida like the Law Office of Gary M. Landau provides personalized guidance about working with that county’s probate court and about notifying creditors, reviewing creditor claims, and complying with all Florida probate deadlines.

Speak With a Coral Springs Probate Attorney

If you are serving as a personal representative or handling matters related to a family member’s estate, you will likely have questions about creditor claims and notice requirements during the probate process.

At the LAW OFFICE OF GARY M. LANDAU, we assist clients throughout Coral Springs, Parkland, Broward County and all other counties in Florida with probates and all probate-related matters.

With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, Boca Raton, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, want to change your deed, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We happily work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

0/5 (0 Reviews)

Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
Scroll to Top