Taxation & Estate Planning

5th DCA: Motion to strike does not qualify as an "objection" to creditor's claim

By Juan C. Antúnez

Fernandez-Fox v. Estate Of Lindsay, --- So.2d ----, 2008 WL 160920 (Fla. 5th DCA Jan 18, 2008)

This case is an example of what NOT to do.  When a creditor filed a claim against this estate the personal representative moved to strike the claim rather than simply objecting to it in accordance with F.S. 733.705(2).  This mistake cost the estate an easy opportunity to cut off liability cheaply and quickly.  Here's how the 5th DCA made this point:

[T]he Florida Probate Code requires an objection to be served according to specific requirements. These include filing within a specified time period, personal service on the claimant, and a statement notifying the claimant of the time period limiting claimant's right to assert an independent action. Fla. Prob. R. 5.496. In this case, the motion to strike never indicated that it was also an objection and, more importantly, the motion to strike did not contain a statement that the claimant was limited to a thirty day period to file an independent action. Under the rule, this is required for an objection. Thus, even assuming that the motion to strike could double as an objection, it failed to comply with the rules governing the manner for objecting to a claim.

An objection must comply with the statutory requirements of section 733.705 and Rule 5.496. Because the motion to strike did not meet the requirements for an objection, the trial court erred by treating the two as the same.

Lesson learned?

When it comes to creditor claims in probate proceedings sometimes substance trumps form [click here], and as this case shows . . .  sometimes it doesn't.  Failure to scrupulously follow the creditor-claim rules contained in F.S. 733.701-733.710 can cost you dearly.

Full post as published by Florida Probate Litigation Blog on January 23, 2008 (boomark / email).