Creditor Claims in Probate - Timing is Everything
Creditor claims in probate are subject to two statutes of limitation within which a creditor claim must be filed with the probate court.
The first creditor claim limitation period is the 30 day / three month rule, which requires that a claim be filed within the later of (i) 3 months after the first publication of the notice to creditors (which is filed in the local business newspaper or the paper of general circulation), or (ii) 30 days after the creditor is served with a copy of the notice to creditors.
For creditors not directly receiving a copy of the notice to creditors, the 3 month rule is subject to a number of extensions that the probate court may grant, the primary one being that the creditor did not have sufficient notice of the claims period. ("Reasonably ascertainable" creditors are supposed to be served with a copy of the notice to creditors. Those that are not served and who were unaware of the running of the claims period will routinely petition the probate court for an extension.)
The second creditor claim period of limitation is the two year rule, which requires creditor claims to be brought within two years of death of the deceased. This limitation period is not subject to extensions or exceptions.
In Mack v. Perri (1st DCA 2009), the Court addressed these claim limitation periods as follows. The Deceased died November 18, 2004. The first notice to creditors was published May 14, 2005. The creditor filed its claim on October 31, 2005.
The Court held that the claim was barred by the three month rule, because the claim was not filed within three months of the publication of the notice to creditors. The Court also held that the claim was barred by the two year rule, because, although the three month limitation has provisions for extensions, the claim and motion for an extension must be filed before the expiration of the two year limitation period.
