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Statute of Limitations for Claims against a Florida Estate

by | Feb 22, 2021 | Estate Administration, Probate |

When a person dies resident in Florida, is there a statute of limitations limiting when a creditor can no longer enforce a debt or claim against the decedent or the decedent’s estate? The answer is in the affirmative. Section 733.710, Fla. Stat. provides that “…2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent.” However, there are several exceptions that apply.

First, the limitation does not apply to a creditor who filed a claim pursuant to Section 733.702 within the two-year period. In other words, even if a probate estate has not been opened, a creditor can file a claim with the clerk of the court in the decedent’s county of residence. If this is done within two years of the decedent’s death, then the claim survives beyond the two-year period. However, if a creditor just sends a bill or invoice to the decedent, that is not enough. The creditor must actually file a claim with the clerk of court.

Secondly, the limitation period does not affect the lien of a duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien. If a person dies and owns property which is subject to a mortgage, the two-year limitation period to enforce a debt does not impact that mortgage lien.

Another exception applies when the claim against the decedent is subject to liability insurance. By example, if the decedent was the “at fault” driver in an automobile accident, and if the decedent had liability insurance, then the injured party can sue even beyond the two-year limitation period. However, the exposure is only to the extent of the liability insurance coverage. The claimant cannot recover above that amount and the recovery is actually against the decedent or the decedent’s estate.

Finally, the limitation period cannot wipe out any debt owed to the IRS. In simple terms, the government always gets its money! If the decedent owed federal income taxes, the IRS can come after the estate and the beneficiaries in order to satisfy the debt. The two-year timeframe does not extinguish the IRS debt.

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