Recently, the Florida Supreme Court held that “claims of known or reasonably ascertainable creditors of an estate who were not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death.” Jones v. Golden, 2015 WL 5727788, at *7 (Fla. Oct. 1, 2015) (emphasis added). The decision ends the conflict between the Fourth District Court of Appeal’s ruling in Golden and the decisions of the First and Second District Courts of Appeal in Morgenthau v. Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009) and Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012), which both held that unless reasonably ascertainable creditors filed a motion for an extension of time under section 733.702(3), Florida Statutes, claims filed three months after the first publication of the notice to creditors are forever barred.
The Florida Supreme Court’s decision involved three particular provisions of Chapter 733, Florida Statutes: sections 733.2121, 733.702, and 733.710. Section 733.2121(1) sets forth the duty of a personal representative to promptly publish a notice to creditors, which “must state that creditors must file claims against the estate with the court during the time [limitations] periods set forth in § 733.702, or be forever barred.” § 733.2121(1), Fla. Stat. (2005) (emphasis added). Section 732.2121 also requires that a personal representative make a “diligent search to determine … creditors who are reasonably ascertainable” and “promptly serve a copy of the notice on those creditors.” § 733.2121(3), Fla. Stat. Section 733.702 is a “statute of limitations” that limits the time for creditors to file claims against the estate to three months after the first date of publication of the notice to creditors. Golden, 2015 WL 5727788, at *8; see also § 733.702, Fla. Stat. (2006). Section 733.710 is a “jurisdictional statute of nonclaim” that limits the liability of the personal representative and the beneficiaries of the estate for “any claim[s] … against the decedent” to a period of two years from the decedent’s date of death. Golden, 2015 WL 5727788, at *6; see also § 733.710(1), Fla. Stat. (2001).
In Golden, the decedent, Harry Jones, died in February 2007. The probate of his estate was opened in April 2007. Harry’s personal representative published the notice to creditors in June 2007. Harry’s personal representative, however, failed to serve a copy of the notice to creditors to Harry’s ex-wife, Katherine Jones, or to Katherine’s guardian. In January 2009, Katherine’s guardian filed a statement of claim against Harry’s estate. Katherine died in 2010, and Edward Golden was appointed curator of her estate. Golden argued Katherine’s guardianship was a reasonably ascertainable creditor. Harry’s personal representative argued “Katherine was not a reasonably ascertainable creditor and that her guardian’s claim was time-barred under section 733.702 and 733.710.” Golden, 2015 WL 5727788, at *3-4 (emphasis added). Relying on section 733.702 and 733.710, as well as Morgenthau and Lubee, the probate court struck the claim by Katherine’s guardian as untimely. Id. at *4.
On appeal, Golden argued that since Katherine was a known or reasonably ascertainable creditor and the notice was never properly served on her, the three-month limitations period in section 733.702(1) never began to run, and as a consequence, the claim by Katherine’s guardian could only be barred by the two-year statute of nonclaim in section § 733.710. The Fourth District agreed with Golden’s argument. The Supreme Court ultimately affirmed the Fourth District in Golden and disapproved the decisions of the First District in Morgenthau and the Second District in Lubee. Id. at *18.