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In Florida, can a creditor open a probate estate of a decedent?

Florida |

Person owes creditors money. Person dies. It is not known if he has a will or a trust, but family will not tell creditors anything. Can a creditor open the decedent's estate in Florida in order to begin the process of getting paid? How do we open it if we have no supporting documents other than information about our claim and the name and address of the decedent? Does the judge appoint a personal rep. just like any other case?


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Attorney answers 4


The creditor can petition the court to force probate, but generally the creditor has to wait until probate is opened. By going to court though, the creditor becomes a known creditor and has to be notified as an interested party when probate is opened. Probate can still proceed without a will. In the Florida Probate Code there are statutes governing intestate (meaning without a will) succession. Florida Statutes also regulates the order different categories of creditors get paid (i.e. funeral expenses get paid before credit card companies, etc.). Should you have further questions, please feel free to contact me.


Under the Florida Proabte Code, a creditor is an "interested person". As an interested person, a creditor can initiate probate proceedings. In a local case a few years back, I saw a bankruptcy trustee initiate probate proceedings to file a claim against the estate of a deceased business owner. The Florida Probate Code gives several options for handling uncertain situations like this, including the appointment of a curator to administer the estate during an initial period of uncertainty. An attorney ad litem can be appointmed to search for and represent the interests of people who might have an interest in the decedent's estate but cannot be ascertained at the time the estate is opened. Obviously, you would want as much information as possible before filing. Under Florida law, a creditor must file a claim within 2 years of the date of death, something that cannot be done unless an estate is opened. Failure to do so bars the claim forever (except for certain claims based upon federal law.)


Yes, as others have noted, a creditor is an interested party and can open a probate proceeding. The exact mechanics can vary; but the times that I have done it I file a petition, allege that it is unknown if a will exists or a trust, and request that I, or someone of my choosing be appointed personal representative. The key is, to use a provison called "formal notice" which gives beneficiaries a 20 day period to contest it or lose their rights; this has always shaken out a will and resulted in the family petitioning for probate and asking that one of them be appointed personal representative. If they do that, odds are high that you will lose on your petition to be appointed personal representative because typically the family is entitled to priority one way or another, but it at least forces them to 'put up or shut up' and gets the probate open, and at that point you can file your claim against the estate. Depending on the facts, if there's no money in the estate, or if a lot of property is exempt, or if there are other creditors in line ahead of you, you may or may not actually recover anything, but it at least gets the ball rolling and the probate open.


Yes a creditor is an interested party and can open a Florida probate. For more information on Florida probates you might review the Florida Probate Handbook.

David Goldman