Unknown Heirs: Doing Publication Right
October 20, 2016 § 3 Comments
A recurring problem in this court is lawyers screwing up publication process for unknown heirs in an heirship determination. When you don’t do it right, you get sent beck to square one, causing further delay in the case, even when your client is breathing down your neck to get the estate closed so they can quit spending money on attorneys and enjoy their inheritance.
It doesn’t have to be that way.
Doing publication for unknown heirs correctly is pretty simple if you will do one simple thing: READ THE RULE!
Since many of you apparently do not own, or know where to find, Rule Books, I am going to quote the two essential rules covering the subject for you:
MRCP 4(c)(4)(D): When unknown heirs are made parties defendant in any proceeding in the 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 are authorized in the case of a nonresident defendant …
MRCP 4(d)(4)(A): If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.
The bold language above is what you need.
Here’s the way to do it:
- Have your fiduciary or someone with personal knowledge sign an affidavit that (1) there are no other persons known to be heirs of the decedent, and, if there are, they are unknown to the affiant, (2) after diligent inquiry.
- The affidavit must be filed before issuance of the summons.
- The publication must be substantially in the form of Form 1-C.
That’s it. That will cause an effective publication.
A few pointers:Any sworn statement with the proper language filed before issuance of the summons will do the job. So, why not revamp your form complaint to open an intestate estate to include the affidavit language. Likewise, if you do a stand-alone determination of heirship, add a paragraph with the appropriate language and make sure it is sworn to by a client with knowledge. One lawyer I know added a prayer for determination of heirship to his estate-opening complaint so that he did not have to file a separate pleading.
You’ll definitely need to do all that correctly, because MCA § 91-7-293 requires in part that “The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known … the statement must aver that diligent inquiry has been made to learn the same without avail …
Some previous posts on the same subject are here, here, and here.
I was under the impression that rule 81(d)(1) required an 81D summons ?
You are right, and 81(d)(5) does require that process is to be returnable to a day certain. To be complete, I should have pointed that out.
My post was focused on the pre-issuance affidavit requirement. Thanks for helping to clarify that.
I am greatly relieved to hear you agree, I was afraid I had been doing it wrong. My daughter, Kate Schneller works for Judge Lester Williamson, if you see her in the hall be sure to let her know I am smarter than she thinks.