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Q: I loaned a friend $50,000. He died last week and his brother tells me I am out of luck because my friend did not leave me anything in his will and the will does not require me to get paid. Is he right?

A: Death does not wipe out a person’s debts. Florida Statutes set forth procedures by which creditors can pursue collection of a debt, even after the debtor dies. Your claim is no longer against the decedent, but is against the estate of the decedent.

To pursue a claim against a decedent, you generally must file a claim in the probate case. Probate is the court administered process by which assets of a decedent are passed on to a decedent’s beneficiaries or heirs.

As part of the probate case, a person, persons or entities are appointed personal representative. The personal representative is responsible for administering the estate. Notice of probate must be sent to all known creditors by the personal representative. If you are concerned that you may not receive notice of probate, you can file a caveat with the clerk of courts.

A caveat is notice to the court that you have an interest in the decedent’s estate. The caveat must contain the decedent’s social security number, last known address and date of birth (if known), statement of the interest of the person filing the caveat in the estate, name and residence address of the person claiming an interest in the estate and, if you do not reside in the county where the caveat is filed you must provide the name and residence address of a person residing in the county or an office address of a member of the Florida Bar residing in Florida, designated as the agent of the person filing the caveat for service of notice in connection with probate.

The personal representative is required to make a diligent search to determine the name and address of all creditors of the decedent. The personal representative is also required to give actual notice to each known creditor that the probate estate is open as well as publish a notice in a newspaper of general circulation in the county where probate is opened, once a week for two consecutive weeks. The notice must include the name of the decedent, the file number of the estate, designation and address of the court where probate is pending, name and address of the personal representative and any attorney, and the date of first publication in the newspaper. The notice must state that creditors are required to file claims against the estate with the court within three months after date of first publication in the newspaper or 30 days after receipt of actual notice by the creditor. If a claim is not timely filed, it is barred.

Filing a claim is relatively simple. The claim needs to have sufficient information to identify the probate proceeding. It must also contain the creditor’s name and address, amount of the claim, basis for the claim, the claim’s security (if any) if the claim is due or, if not due, the date on which it will become due and any uncertainty concerning the claim. The claim must be filed with the clerk of court.

After the claim is filed, objection may be filed by the personal representative or any other person interested in the decedent’s estate. The objection must be in writing and filed with the clerk of court. A copy of the objection must be sent to the claimant by registered or certified mail. The objection must be filed within four months of the first publication of notice to creditors in the newspaper or within 30 days from the filing of a claim or an amendment to the claim, whichever is later.

If an objection is filed, the creditor has 30 days to file suit. Failure to timely file suit terminates the claim.

If no objection is made, the claim is considered valid and nonexempt assets of the decedent are used to pay valid claims. Assets exempt from creditor’s claims include homestead property, IRA and retirement accounts with named beneficiaries that are not payable to the estate, life insurance payable directly to a beneficiary and not to the estate, household furnishings in the decedent’s primary residence up to a net value of $10,000, all automobiles owned by the decedent and regularly used by him or members of his immediate family as personal automobiles.

Assuming there are assets available to pay claims, you still may have problems. Section 733.707 of Florida Statutes provides eight classes of claims. Class 1 includes costs, expenses of administration, compensation of the personal representative and their attorneys. Class 8 is the lowest priority, and includes general claims and judgments against the decedent. If there are not enough assets to pay all claims, payment is made by priority class. If not enough assets to pay all claims within a particular class, the claims in that class are paid pro rata.

If there are not enough assets in the estate to pay all claims and the decedent had a revocable trust, the personal representative is entitled to payment from the trustee of the trust of the amount needed to pay the expenses of probate and claims against the estate. Although assets in a revocable trust are not generally subject to probate, they are available to pay creditor claims.

Probate may not be filed where all assets of a decedent were held in a revocable living trust. In other cases, assets are not discovered until a long time after someone’s death. In these cases, creditors need to be careful. If a creditor claim is not pursued within two years of someone’s death, the claim is also barred. The two year time limit applies even if probate is not started until more than two years after death.

In cases where probate is delayed, a creditor can petition the court to open probate and for appointment of a personal representative. A creditor qualifies as a person interested in the estate and the opening of probate may be essential to protect the creditor’s claim.

As with all legal matters, the facts of a particular case will affect the choice of action. I suggest you discuss your situation with an experienced attorney promptly, as delay can bar your claim.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.