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Probate

When creditors make claims on your loved one’s estate in Florida

Whether an estate is large or small, when someone dies, the creditors come for what they’re owed. Although not everyone passes away owing debts, those who do still have to make good on the credit they borrowed during their lifetime. Unfortunately, not all debts are dismissed when we pass away.

When it comes to dealing with creditors during probate in Florida, like all states, there are specific rules and laws that protect both the estate, as well as creditors.

Requirements for notifying creditors in Florida

When someone passes away, whoever's in charge of the estate, whether that be an executor or an administrator appointed by the court, they’re responsible for notifying creditors of the passing.

This formal notification process is called the Notice to Creditors and is meant to not only let creditors know that the person has died, but to give them the necessary amount of time to reach out and claim the debt.

It’s essential that this Notice to Creditors is posted weekly for two back-to-back weeks in a publication in the county in which the person has passed away.

According to Florida Statute 733.2121, the notice must be published immediately and contain the following information: decedent's full legal name, the file number that has been assigned to the estate, the court (and its address) of where it will be filed, the name and contact information of whomever is representing the estate, the name and contact information of the personal attorney (if there is one), the date of the notice's first publication (as these things are time-sensitive), and a statement that creditors can only file their claims within a certain period of time as stipulated under Florida Statute 733.702 and 733.710.

Creditors have two years from the date of death of the decedent to file a claim. 

 A Proof of Publication that this notification has been published must be filed with the court within 45 days of the first day it was published in the county newspapers. Florida also requires that the representative of the estate do their best to personally contact any creditors that they might be aware of.

However, if not everyone is contacted, it's assumed the attempt to do so was done in "good faith" and the issue isn't usually pursued.

The general order for paying creditors in Florida

Even if the estate doesn’t have enough money to pay all the debts it might have left behind, there’s still an order that’s to be followed in regard to which of the creditors will be paid first.

It’s only after all debts are paid that the beneficiaries can receive anything from the estate. If there is nothing left, or not even enough to cover all the debts, then those of lesser priority (as in, the furthest down on the list) won’t be reimbursed.

According to Florida Statute 733.707, the obligation of payments is broken up into classes:

Class 1: Costs and expenses of the estate's personal representation, including attorney fees.

Class 2: Funeral costs that should exceed $6,000.

Class 3: Federal debts and taxes, and claims from the state in regard to court-related fees.

Class 4: Hospital and medical expenses of the last 60 days of the decedent’s life if they passed from an illness.

Class 5: Family allowance.

Class 6: Court-ordered child support.

Class 7: Debts related to the decedent’s business, if they had a business.

Class 8: All other claims.

Assets that creditors can claim

Although creditors do have a right to post claims against the estate in order to settle debts, non-probate assets are usually off limits.

For example, in Florida, the homestead is exempt from probate but only if the property is deemed to indeed be the homestead in which the decedent lived during their lifetime.

If there’s property that can't be determined as being the actual homestead under the Florida Constitution, then creditors can step in to demand that it be sold so they can collect their debts.

A way to possibly get around this is to petition the court in the hopes of receiving an Order that states that the status of the property is the homestead, officially making it non-probate and out of the grasp of creditors.

Creditors and the assets of a spouse or adult child

It goes without saying that when it comes to settling a debt, some creditors will go to great lengths to do so.

Some will even go so far as to demand that the surviving spouse, an adult child, or another family member is responsible for repaying the debt of the person who has passed away, but that’s not true.

When it comes to asset protection from creditors, the laws in Florida play in favor of the family—as long as things are filed correctly.

When it comes to asset protection from creditors, the laws in Florida play in favor of the family—as long as things are filed correctly.

For example, life insurance policies are protected from creditors unless the policy has to go through probate. The reason a policy might have to go through probate would be if the decedent never listed a beneficiary.

Because this error makes the policy’s proceeds a probate asset, then creditors can make claims against it.

In regard to filial responsibility laws, meaning the family could be liable for paying for their loved one’s long-term car after they pass away, Florida doesn’t currently have these laws in place as other states do.

The only way a family member could be held liable to cover these costs is if they signed a contract with the care facility in which they agreed to be responsible for the expenses.

Paying back Medicaid in Florida

However, Medicaid is a different story. In Florida, both the federal and state law regard Florida Medicaid as a debt that must be reimbursed if the person was over 55 when they passed away. Although this reimbursement doesn’t technically come out of the pockets of the family, it does come out of the estate. 

While there are protections in Florida that help family members avoid losing assets to creditors during probate, there are certain circumstances and laws in which the creditors will find a way to be reimbursed. With this in mind, it’s important to be aware of what they legally can and can’t claim, and not just take the creditors’ word for it

Probate

Probate

Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.