A Caveat for Affidavits of Known Creditors
July 26, 2016 § 2 Comments
Your client is going to be appointed executor of an estate. So it makes perfect sense that, when he comes in to sign the petition, at the same time you have him sign the oath, affidavit of known creditors, and notices to those known creditors. Why should he have to make more than one trip to your office, right? Then, after the order appointing him is signed by the judge, you go ahead and file the pre-signed oath, affidavit, and notices.
But is that effective? Does it comply with the statute?
As far as the oath is concerned, I see no problem. The oath is taken in his capacity as an individual, and is only effective once the order appointing him is signed by the judge and the oath is thereafter filed.
But the notice and affidavit requirements are a different matter. MCA 91-7-45(1) specifically requires the “executor or administrator” to make reasonable and diligent efforts to identify and give notice to creditors. Only the executor or administrator can do this function, and there is no executor or administrator until the judge signs the appointing order, and a bond (if required) and oath are filed.
Likewise, MCA 91-7-45(2) requires the “executor or administrator” to file the affidavit of known creditors that must be on file before the Notice to Creditors is published. Only the executor or administrator can do this. Signing the affidavit before one is appointed and qualified is not signing in the capacity of executor or administrator.
I am not aware of any case law specifically addressing these points, but the many cases construing probate statutes are emphatic that the specific language of the statutes control, and that substantial or nominal compliance is not enough.