Publishing for Unknown Heirs
November 5, 2014 § 1 Comment
Every district I know of requires publication for unknown heirs in administrations (intestate estates). There are times, also, when you need to establish who the heirs are for other reasons.
In those type cases you have to publish process to the unknown heirs. I have seen lawyers attempt it in a variety of ways, but there is only one right way to do it.
It’s spelled out in MRCP 4(c)(4)(D), which provides, in pertinent part:
When unknown heirs are made parties defendant in any proceeding in chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them, and such proceedings shall be thereupon in all respects as in the case of a nonresident defendant. …
R81(d)(1) requires 30 days’ notice. R81(d)(5) requires that the defendant(s) be summoned to appear and defend at a specific time and place. R81(d)(4) provides that no answer is required. R81(d)(3) states that the matter shall not be taken as confessed.
So here it is, step by step:
1. Prepare a petition stating the names of the known heirs, and stating that there are no other known heirs. If the petition is sworn, you can skip step 2.
2. Have the administrator or some other person(s) with knowledge state in an affidavit that the only known heirs are named in the petition, and that there are no other known heirs. File the affidavit.
3. Prepare a summons to the unknown heirs returnable to a day and time certain more than thirty days from the date of first publication.
4. Publish the summons in a newspaper published in the county of the action or, if there is no newspaper published there, post it on the door of the county courthouse and ” … published as above provided in a newspaper in an adjoining county or at the seat of government of the state.” The publication is once a week for three consecutive weeks (R4(c)(4)(B)).
5. On the return day, appear at the appointed time and have the case called. You can proceed in the manner that the chancellor directs. Since the rule provides that the matter may not be taken as confessed, most chancellors require testimony, although some will rely on the affidavit, per R78.
6. If the case can not be heard on the return day, for whatever reason, have an order entered on that same day, continuing the case to a future date (R81(d)(5)). And every subsequent continuance order must be signed by the chancellor on the day to which the case was continued. If you fail to do this, you will have to reissue process.