February 3, 2015 § 2 Comments
Last week the Meridian Star newspaper failed to publish legal notices scheduled for Tuesday, apparently by oversight. The paper called the lawyers who had had items scheduled and offered to republish any way the lawyers directed.
This caused some heart palpitations that influenced two lawyers to seek out my position on the matter, since estates assigned to me were affected. Each were running second and third publications. They had directed the paper to publish on three consecutive Tuesdays, and were concerned about the variation in days.
Before getting to a response, let’s look at the two most commonly invoked provisions on point:
- MCA 91-7-145(2) states that notice to creditors in an estate, conservatorship, or guardianship ” … shall be published for three consecutive weeks.” The requirement clearly is that the publication be made once in each of three consecutive weeks. The day is immaterial.
- MRCP 4((a)(4)(b) for process by publication is even clearer. It specifically provides that ” … publication of said summons shall be made once in each week during three consecutive weeks …” Again, the specific day of the week is immaterial.
So the answer, simply, is that so long as the paper publishes your notice or process one time in each of three consecutive weeks, regardless of the days when the notices are published, you have met the requirement of the statute and the rule.
There are other notice statutes. When you must comply with one, follow the express language of the statute.
Sometimes we get caught up in old habits, like telling the clerk at the paper to “Run this the next three Wednesdays …” and that’s how we always do it because that’s how we’ve always done it. But it’s the specific language of the statute or rule that controls, not force of habit.
September 27, 2010 § 20 Comments
- _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
- _____ Oath of Executor/Administrator filed.
- _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
- _____ Letters Testamentary or of Administration issued.
- _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
- _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
- _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
- _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
- _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
- _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
- _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
- _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.
June 18, 2010 § 5 Comments
§ 91-7-293, MCA 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 … ”
So how do you know who the real heirs are? There is a case in Clarke County where as far as the children knew the decedent had no other heirs, and the case proceeded on that basis until one fine day when a claimant popped up. That case has been pending a dozen years, with an appeal and remand, and a third generation of lawyers. The claimant says that the decedent fathered him while in the Air Force in California during the Korean conflict, and that he secretly stayed in touch with him through all the years. The point is that the children were never aware that there was anyone else claiming to be a child. The undeniable fact is that — especially in the case of a male decedent — we can never be entirely sure that the decedent did not have another child the family did not know about.
Whether to require publication to determine unknown heirs in administrations was a topic of discussion at the Chancery Judges’ winter study meeting in January. The consensus was that determination of unknown heirs should be required in all administrations, so you should be prepared to meet this requirement as you handle estate business around the state. FYI: in District 16 (Jackson, Greene and George Counties), you will be required to publish in both testate and intestate estates.
In sum, you must include an action to determine the unknown heirs of the decedent in all administration actions, with proper publication. Thirty days’ notice is required for the action to determine unknown heirs.
You will not be able to close the estate unless the action to determine unknown heirs is completed.
June 17, 2010 § 7 Comments
So you dug and dug until by the hardest you found the defendant’s mailing address in Moosebreath, Idaho. Good for you. Pleadings all prepped and filed. Publication 3 consecutive weeks in the MERIDIAN STAR for that anticipated and fateful day. Notify client to be there. No answer filed. Case called in open court. Defendant called 3 times. Present judgment …
Judge shakes his head and says, “Sorry, no jurisdiction.”
What happened? How do you explain this to your client?
The answer is in Rule 4 (c) (4) (C), MRCP. That rule states: “Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be evidence of the summons having been mailed to the defendant” [Emhasis added].
Prectice tip: At the same time that you file your pleading, provide the clerk with an extra copy of the pleading and the summons and specifically request that it be mailed as set out in the rule, and that the facts of issuance of process and mailing be noted on the docket. Some lawyers, to add a measure of assurance, pay the postage for the clerk to mail it certified mail, return receipt requested, although that should not be strictly necessary if the facts of issuance and mailing are properly noted on the general docket.