Last Friday, the Fifth District Court of Appeal of Florida (5th DCA) affirmed a lower court’s ruling in Souder v. Malone, 2014 Fla. App. LEXIS 11760 (Fla. 5th DCA 2014) and held where a personal representative of an estate in probate has failed to serve a copy of the notice to creditors on a known or reasonably ascertainable creditor, such creditor’s remedy is to petition the probate court for an extension of time before the end of the two year limitation period. Although noting a conflict in their decision with the Fourth District Court of Appeal, the 5th DCA agreed with decisions by the First and Second District Courts of Appeal entered in 2009 and 2012, respectively, and reasoned that creditors who are not served with 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 Section 733.702(3), Fla. Stat. within the two-year window set forth in Section 733.710, Fla. Stat. The decision by the Fourth District Court of Appeal was itself in conflict with the decisions by the First and Second District Courts of Appeal.
Jason Malone was appointed Personal Representative of the Estate of Robina Malone, his mother, on June 28, 2011. The Florida Probate Code requires a personal representative to publish a notice to creditors and to serve a copy of the notice on reasonably ascertainable creditors. James Souder (Souder) was not served with a copy of the notice to creditors, and filed four separate claims against the Malone estate. His first two claims were filed on June 6th and July 20th of 2012, and his third claim on March 15, 2013. Only Souder’s first three claims were at issue in the appeal. Significantly, the 5th DCA stated, Souder never petitioned the trial court for an extension of time in which to file his claims against the Estate.
In October of 2013, the probate court entered an order striking the three claims above, finding that they were untimely filed under the Florida Probate Code because they were filed after the three-month creditors’ claim period which had expired and Souder failed to petition the court for an extension of time in which to file his claims. On appeal, Souder’s argument, citing Section 733.2121(3)(a), Fla. Stat., was that the probate court erred in striking his claims before determining whether he was a known or reasonably ascertainable creditor. 733.2121(3)(a) requires a personal representative to promptly make a diligent search to determine the names and addresses of reasonably ascertainable creditors of the decedent and serve a copy of notice to creditors on them. Souder argued that that he was a known or reasonably ascertainable creditor, and because the Personal Representative of the Estate failed to serve him the creditors’ claim period never began to run. Therefore, his claims were timely filed because they were within the two-year limitation period for creditors set forth in Section 733.710, Fla. Stat.
The 5th DCA’s decision was based on its interpretation of Section 733.702, and in particular Subsection (3) thereof. The 5th DCA sided with prior decisions of the First and Second District Courts of Appeal in Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012) and Morgenthau v. Estate of Andzel, 26 So.3d 628 (Fla. 1st DCA 2009). The 5th DCA reasoned that even assuming Souder was a known or reasonably ascertainable creditor, his claims were in fact time barred after the three month creditor’s claim period had passed if no petition seeking an extension of time in which to file the claims was filed. Extensions may be granted under Section 733.702(3) only upon grounds of fraud, estoppel, or insufficient notice of the claims period. The 5th DCA’s holding conflicts with Golden v. Jones, 126 So.3d 390 (Fla. 4th DCA 2013) which 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 5th DCA disagreed with the apparent holding in Golden v. Jones that if a known or reasonably ascertainable creditor is not served with the notice to creditors that the limitations period set forth in Section 733.702(1) does not begin to run. The 5th DCA construed Subsections (1) and (3) of Section 733.702 together and opined “that the Legislature has determined 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.” The 5th DCA placed great weight on Subsection (3) which authorizes a probate court to extend the time in which to file a claim where there wasinsufficient notice of the claims period.
The Florida Supreme Court has discretionary jurisdiction in situations where a decision by a district court of appeal expressly and directly conflicts with a decision of another district court of appeal, but has already agreed to accept jurisdiction in Golden v. Jones, supra. Therefore, more is still to come.
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