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.

Another post discussing the right way and order to do the notice and affidavit is here.

§ 2 Responses to A Caveat for Affidavits of Known Creditors

  • Carter says:

    In Re Estate of Petrick states that publication prior to filing affidavit is void. Affidavit must be based on actual diligent search and inquiry. There is a case out of Pearl River county within the last 10 years, Estate of Ladner, which states that the fiduciary is charged with notice of the obvious–in that case, a builder who had a trailer sitting on the decedent’s property should have been noticed. Estate of Stewart (I am embarrassed to cite) notes that attorneys representing the decedent on a property dispute who were in a dispute with the fiduciary after their client died over fees should have been provided actual notice.

    The interesting thing to me is that notice of publication is void as to all when the publication is done prior to filing the affidavit. If the affidavit is defective in that a creditor who should receive written notice as per 91-7-145 does not, is notice to all other creditors good? It would appear to me to be so, and that it is the creditor who was not actually noticed who must act to reopen time for him/her to have his/her claim properly probated.

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