What to do in an Administration When a Will Pops Up
April 30, 2014 § 2 Comments
You have opened administration of an intestate estate, and things are moving smoothly along. Your administratrix pops in one day and plops a document on your desk. “What’s this?” you ask. “Pop’s will,” she says. “Crap,” you think.
It happens now and then that a will surfaces in the midst of an intestate estate. It’s a common enough occurrence that there is even a statute telling us what to do when that happens. MCA 91-7-87 says:
If a will shall be found and probated and letters testamentary granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation shall be valid and binding.
The statute requires that the will be admitted to probate and letters testamentary issued before the administration is revoked.
If there is serious doubt as to the validity of the will, it would be best to file a caveat against probate and proceed per MCA 91-7-21. Otherwise, a petition spelling out the circumstances should be filed, specifically asking the court to revoke the administration per MCA 91-7-87. The judgment admitting the will to probate cancels the administration, and the acts done lawfuly up to that point by the administrator will be valid and binding. I don’t find any case law addressing whether the affidavit and publication for creditors filed in the administration would be valid and binding in the testate estate.
About your last observation, if the executor under the will is a different person that the administrator, I would think a new affidavit and publication would be in order. If they’re the same person, a new affidavit and publication would be redundant I would think. Just my opinion, but a new affidavit and publication would be the safest thing to do.
I can’t argue with that last observation.