Deceased Defendant in Florida
November 9, 2017
A deceased defendant in Florida can throw a wrench into an injury case. As discussed in Gomez v. Fradin, 199 So.3d 554 (Fla 4th DCA 2016), the defendant’s estate must be administered for the case to proceed, however sometimes it falls upon the plaintiff’s or defense firm to jump start this process. When no one related to the decedent/defendant pursues probate, the estate is typically without significant assets. In a situation where no family member or acquaintance of the defendant takes the initiative to administer the estate there are several options to consider to administer the estate of a deceased defendant in Florida:
- Convince a family member to act as personal representative: One strategy in administering the estate of a deceased defendant is to reach out to the decedent’s family and gently explain that the estate needs to be administered, that attorney’s fees have already been provided for, and that a family member has preference under the law to act as personal representative of the estate. If a family member agrees to act as personal representative, they will likely do so without compensation, and the family member likely has no conflict of interest with the estate. A potential downside to using a family member in this situation is that they have nothing to gain from administering the estate, and may malinger in executing documents and taking steps necessary to secure Letters of Administration.
- Use the plaintiff as personal representative: As a creditor to the estate, the plaintiff has an interest in the proceedings and may serve as personal representative after noticing all necessary parties. The plaintiff of course has a conflict of interest, having both a claim against the estate and a fiduciary duty to the estate. However, in a situation where you seek damages from an estate there will likely be insurance coverage and defense counsel hired by the insurance company to defend the estate. Furthermore, it is not unusual for creditors to administer debtor estates when no relative is willing to do so. This dynamic, plus a possible posting of bond by the plaintiff/personal representative, will assuage a court’s concern regarding the conflict of interest.
- Use an attorney or professional to act as personal representative: The probate attorney handling the estate, if willing, will typically be allowed by the court to serve as personal representative. Alternatively, a third-party attorney or professional guardian/conservator may be appointed by the court. These parties will generally be efficient, but may charge a fee to serve. At Florida Probate Law Group, our attorneys often facilitate the administration of deceased defendant estates, and do not charge an additional fee for this service.
On August 4, 2021 Florida’s 1st DCA entered an opinion barring claims against tort defendants filed more than 2 years after the death of the defendant. The opinion, Tsuji v. Fleet, can be found here.
Previous courts, including the 2nd, 3rd, and 4th DCA had ruled that the 2 year bar for claims found in F.S.733.702(5) and 733.710(1) did not apply to the policy limits of casualty insurance in place at the time the decedent acted negligently. These courts relied on the exception provided in F.S.733.702(4)(b), which exempts insurance companies from needing to be provided with a notice to creditors within the usual probate timelines.
However, the Tsuji court reasoned that because F.S. 733.710(1) creates an absolute bar to claims filed against the personal representative 2 years after the decedent’s death, and “an insurer cannot be liable for such claims until a creditor seeks and perfects a claim against the decedent tortfeasor,” a plaintiff who does not sue a defendant’s estate within 2 years of the defendant’s death has forfeited their claim.
This ruling effectively creates a 2 year statute of limitations beginning at the death of a defendant. It is therefore more important than ever to 1) know if a defendant passes away, and 2) diligently pursue claims against deceased defendants by facilitating estate administrations when needed. Our video below explains the process of administering a defendant’s estate.
Every case is different, and the nature of your claim against the estate affects the viability of these choices. Generally, a professional third party is the ideal choice. In any case, Florida Probate Law Group can help guide you to the right solution and administer the estate of a deceased defendant in Florida.
Written by Charles “Cary” David