THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 10 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

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§ 10 Responses to THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

  • […] Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity. […]

  • […] Another post discussing the right way and order to do the notice and affidavit is here. […]

  • […] Before you publish, you must file an affidavit of the fiduciary that he or she has made a reasonably diligent effort to identify and give notice to persons who may have claims against the estate. Failure to file the affidavit before publication voids the publication. […]

  • […] Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity. […]

  • A query: Is it required that the written notice which is mailed to a reasonably known potential creditor (before the publication of the notice to creditors in a newspaper) give the actual date of the planned publication in the newspaper. That first publication date would seem to be required in the mailed written notice, otherwise, the precise timeframe for filing a claim would not be known by the creditor. However, including the intended first publication date in a written notice, can be somewhat problematic if the planned publication does not commence on precisely that exact target date mentioned in the written notice….all practioners know this sometimes occurs despite the best laid plans of mice and men…i.e. the newspaper commences publication on a slightly different date for some scheduling reason (after the various actual notices have already been mailed to the known creditors). Then, it seems, the prudent attorney is forced to re-set a new publication date and re-send the written notices to the known creditors with that new publication date (and re-file the required affidavit stating that written notice has been given to those creditors ascertained after reasonably diligent inquiry). Then, of course, commence the publication of the notice to creditors on that correct revised date which was mentioned in the revised written notices. In a perfert world, publication ALWAYS occurs on the targeted date, but who lives there?
    Lots of effort to get it exactly right…..perhaps it is inherent in the process…so, what do practioners think of my query above?

    • Larry says:

      I am away from the office and don’t have ready access to my code, but I don’t think that the statute requires giving the date(s) of publication, and I’m not aware of any case that dictates that. It seems to me that once you put them on notice, they have the responsibility to inquire into the details.

  • […] Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that ”Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity. […]

  • Marty says:

    Can you include the affidavit in the petition to open estate, when the petitioner has not been appointed the executor or administrator yet? If the statute requires “[t]he executor or administrator shall file with the clerk of the court an affidavit,” it seems you would need to wait until the decree or even the letters had been issued.

    • Larry says:

      You know, I thought about that when I typed it. As hypertechnical as the COA and MSSC have been in interpreting these statutes, the safest position would be to wait until the fiduciary has qualified and been appointed. There’s no case that I am aware of one way or the other. I do like the way you pay attention.

      • James says:

        What if all the required documents have the same date (petition to open, order granting letters, affidavit of creditors, first publication date of notice to creditors) and that date is only three days after the funeral? I have seen this in a file recently. It is about three weeks until the ninety days runs.

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