Fl. Prob. R. 5.241

As amended through September 12, 2024

Rule 5.241 - NOTICE TO CREDITORS

(a) Publication and Service. Unless creditors' claims are otherwise barred by law, the personal representative must promptly publish a notice to creditors and serve the notice on all creditors of the decedent who are reasonably ascertainable and, if required by law, on the Agency for Health Care Administration. Service of the notice must be either by informal notice, or in the manner provided for service of formal notice at the option of the personal representative. Service on one creditor by a chosen method will not preclude service on another creditor by another method.

(b) Contents.

(1) The notice to creditors must contain the name of the decedent, the file number of the estate, the designation and address of the court, the name and address of the personal representative and of the personal representative's attorney, and the date of first publication of the notice to creditors. The notice requires all creditors to file all claims against the estate with the court, within the time provided by law.

(2) The notice must state that the personal representative or curator has no duty to discover whether any property held at the time of the decedent's death by the decedent or the decedent's surviving spouse is property to which the Florida Uniform Disposition of Community Property Rights at Death Act as described in sections 732.216-732.228, Florida Statutes, applies, or may apply, unless a written demand is made by a creditor as specified under section 732.2211, Florida Statutes.

(c) Method of Publication and Proof. Publication must be made as required by law. The personal representative must file proof of publication with the court within 45 days after the date of first publication of the notice to creditors.

(d) Statement Regarding Creditors. Within 4 months after the date of the first publication of notice to creditors, the personal representative must file a verified statement that diligent search has been made to ascertain the name and address of each person having a claim against the estate. The statement must indicate the name and address of each person at that time known to the personal representative who has or may have a claim against the estate and whether such person was served with the notice to creditors or otherwise received actual notice of the information contained in the notice to creditors, provided that the statement need not include persons who have filed a timely claim or who were included in the personal representative's proof of claim.

(e) Service of Death Certificate. If service of the notice on the Agency for Health Care Administration is required, it must be accompanied by a copy of the death certificate.

Fl. Prob. R. 5.241

Amended by SC2024-1057, effective 9/5/2024; amended by 287 So.3d 492, effective 1/1/2020; amended by 959 So.2d 1170, effective 1/1/2008; amended by 964 So.2d 140, effective 7/12/2007; amended by 912 So.2d 1178, effective 1/1/2006; added by 824 So.2d 849, effective 5/2/2002.

Committee Notes

It is the committee's opinion that the failure to timely file the proof of publication of the notice to creditors will not affect time limitations for filing claims or objections.

On April 19, 1988, the United States Supreme Court decided Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565. This case substantially impacted the method for handling (and barring) creditors' claims. This case stands for the proposition that a creditor may not be barred by the usual publication if that creditor was actually known to or reasonably ascertainable by the personal representative, and the personal representative failed to give notice to the creditor by mail or other means as certain to ensure actual notice. Less than actual notice in these circumstances would deprive the creditor of due process rights under the 14th Amendment to the U.S. Constitution. Probably actual notice of the death (as in the case of a hospital where the decedent died as a patient) without notice of the institution of probate proceedings is not sufficient.

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested persons of the pendency of the proceeding and afford them an opportunity to present their claims.

The steps to be taken by a personal representative in conducting a diligent search for creditors depends, in large measure, on how familiar the personal representative is with the decedent's affairs. Therefore, the committee believes it is inappropriate to list particular steps to be taken in each estate, since the circumstances will vary from case to case.

The statement required by this rule is not intended to be jurisdictional but rather to provide evidence of satisfaction (or lack thereof) of the due process requirements.

Rule History

2002 Revision: New rule to implement procedures consistent with new section 733.2121, Florida Statutes.

2003 Revision: Committee notes revised.

2005 Revision: Subdivision (a) amended to clarify approved methods of service on creditors. Committee notes revised.

2007 Revision: New subdivision (e) added to require service of a copy of the decedent's death certificate on the Agency for Health Care Administration, as is now required by section 733.2121(3)(d), Florida Statutes.

2019 Revision: Subdivision (e) amended to clarify that a copy of a death certificate suffices.

2024 Revision: Subdivision (b)(2) was created to conform to an amendment to section 733.2121, Florida Statutes, which requires the notice to creditors to include a notice that the personal representative has no duty to determine if property is subject to the Florida Uniform Disposition of Community Property Rights at Death Act. Committee notes revised.

Statutory References

ch. 50, Fla. Stat. Legal and official advertisements.

§ 731.301, Fla. Stat. Notice.

§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.

§ 733.702, Fla. Stat. Limitations on presentation of claims.

§ 733.703, Fla. Stat. Form and manner of presenting claim.

§ 733.704, Fla. Stat. Amendment of claims.

§ 733.705, Fla. Stat. Payment of and objection to claims.

§ 733.708, Fla. Stat. Compromise.

Rule Reference

Fla. Prob. R. 5.490 Form and manner of presenting claim.