Under Florida law, a creditor cannot file an effective claim against an estate more than 3 months after publication of the Notice to Creditors, UNLESS the creditor is a known or reasonably ascertainable creditor that was not sent a Notice to Creditor. Therefore, such a known or reasonably ascertainable creditor that has not received notice can file a claim more than 3 months after the publication date, so long as it is not more than 2 years after death of the decedent (per the absolute 2 year deadline of Fla.Stats. Section 733.710).
Can such a creditor directly file a claim, or does the creditor also have to file a motion for leave to file a later claim within the 2 year period? In Morgenthau v. Estate of Andzel , 26 So.3d 628 (Fla. 1 st DCA 2009) and Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012), two District Courts of Appeals require that the motion be filed to trigger a court review whether the creditor is a known or reasonably ascertainable creditor that should have received notice – the mere filing of the claim is not enough. Now, along comes a new case, Golden v. Jones, 2013 WL 5810360 (4th DCA 2013), which provides that the motion is not required.
Legislative relief on the need to file such a motion may be forthcoming. But until it does, or unless the Florida Supreme Court resolves the split among its Circuits, creditors outside the 4th DCA should nonetheless file the motion to protect their late filed claims.
For additional write-ups on the case, see Rubin on Probate Litigation (Jenna Rubin) and the Probate and Trust Litigation (Juan C. Atunez) blogs.
Golden v. Jones, 2013 WL 5810360 (4th DCA 2013