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Can a Creditor Petition to Open a Probate in Florida?

| Feb 12, 2021 | Estate Administration, Probate |

When a person dies domiciled in Florida, in order to administer his or her estate, a probate often must be opened. The question arises, who can petition to open a probate of the decedent’s estate? Certainly, a spouse or beneficiary could do so. But what about a creditor—someone to whom the decedent owed money?

Section 733.202, Fla. Stat. provides that “Any interested person may petition for administration.” So, is a creditor considered an “interested person” in this context? Section 731.201(23) of the Florida Probate Code provides the following definition:

(23) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

Using this definition of interested person, creditors are not specifically listed. However, it can be said that a creditor may “reasonably be expected to be affected by the outcome” of the probate proceeding. There are several Florida cases which support this conclusion. Arzuman v. Estate of Bin 879 So.2d 67529 (Fla. 4th DCA 2004); Montgomery v. Cribb, 484 So.2d 73 (Fla. 2d DCA 1986).

Although a creditor may petition to open a probate, it does not mean that the creditor can serve as court appointed Personal Representative of the estate. The determination of who can serve in that capacity is set forth in Sections 733.301-733.302, Fla. Stat. The only way this would extend to a creditor serving as Personal Representative would be if the majority of heirs selected the creditor to serve in that capacity.

 Why would a creditor want to petition to open a probate? The scenario can be shown by an example: John died owing $55,000 to Acme Corporation. At the time of his death, John had investments totaling $200,000. These investments were held in a money-market account which was in John’s sole name, with no beneficiary or pay-on-death designee. After John’s death, no one took action to open a probate. This might be due to there being no family or heirs to take action or it may be for some other reason. Since Acme was owed a substantial debt and there are assets to pay that debt, Acme might want to initiate action so that the estate can be administered. That way, they can get paid through the estate.

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