Is the act of publishing notice to creditors a “power” or a “duty”? According to the 3rd DCA, for purposes of applying the relation back doctrine codified by F.S. 733.601, it doesn’t matter.
In Richard, et al. v. Richard, [the opinion is not yet published, but you can read it here], the 3rd DCA addressed the issue of whether the relation back doctrine applies to give effect to a Notice to Creditors published before the court entered an appointing personal representatives.
The relation back doctrine provides, in pertinent part:
The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.
The surviving spouse in Richard filed a claim against the estate more than three (3) months after the first Notice to Creditors was published; outside of the three-month statute of limitations period within which to file claims against an estate. She argued that the Notice to Creditors was defective because it was published before the personal representatives had been appointed by the court, and therefore her claim was timely.
She further argued that the relation back doctrine should not apply to give effect to the Notice to Creditors because the act of publishing Notice to Creditors is a “duty” and not a “power” of the personal representative. According to the surviving spouse’s strict interpretation of the statute, the relation back doctrine only applies to the “powers” of a personal representative; not “duties.” The lower court agreed.
On appeal the 3rd DCA reversed, ruling that the relation back doctrine gives effect to all acts taken by a personal representative prior to his or her appointment, including the publishing of a Notice to Creditors. Creditors of an estate must file their claim within three months of the first publication of a Notice to Creditors, even where the Notice is published before the court appoints a personal representative.