SO EXACTLY WHO ARE THE HEIRS IN ADMINISTRATIONS?

June 18, 2010 § 5 Comments

§ 91-7-293, MCA requires in part that “The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known … the statement must aver that diligent inquiry has been made to learn the same without avail … ”

So how do you know who the real heirs are?  There is a case in Clarke County where as far as the children knew the decedent had no other heirs, and the case proceeded on that basis until one fine day when a claimant popped up.  That case has been pending a dozen years, with an appeal and remand, and a third generation of lawyers.  The claimant says that the decedent fathered him while in the Air Force in California during the Korean conflict, and that he secretly stayed in touch with him through all the years.  The point is that the children were never aware that there was anyone else claiming to be a child.  The undeniable fact is that — especially in the case of a male decedent — we can never be entirely sure that the decedent did not have another child the family did not know about.           

Whether to require publication to determine unknown heirs in administrations was a topic of discussion at the Chancery Judges’ winter study meeting in January.  The consensus was that determination of unknown heirs should be required in all administrations, so you should be prepared to meet this requirement as you handle estate business around the state.  FYI:  in District 16 (Jackson, Greene and George Counties), you will be required to publish in both testate and intestate estates.

In sum, you must include an action to determine the unknown heirs of the decedent in all administration actions, with proper publication.  Thirty days’ notice is required for the action to determine unknown heirs.   

You will not be able to close the estate unless the action to determine unknown heirs is completed.

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