Summoning the Unknown

April 23, 2018 § 4 Comments

It’s frustrating and expensive to find out that your summons by publication for unknown heirs is rejected because you didn’t do it right. Nine out of ten times the flaw is in the affidavit that is required to precede publication.

“What?” you say, “there must be an affidavit?”

Oui, mon ami. Consider the language of MRCP 4:

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.

Notice that the affidavit is required to be made and filed before publication.

Here’s the 1-2-3 of how to do it:

  1. Have your fiduciary or someone with personal knowledge sign an affidavit that (a) there are no other persons known to be heirs of the decedent, and, if there are, they are unknown to the affiant, (b) after diligent inquiry.
  2. The affidavit must be filed before issuance of the summons.
  3. The publication must be substantially in the form of Form 1-C.

That’s all there is to it. That will result in an effective publication.

It’s important that you do it right, because bad process is ineffective to confer jurisdiction. A judgment rendered without jurisdiction is void.

Here are some tips for the more zealous among you:

  • 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.
  • If you do a stand-alone complaint for 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.
  • While you’re at it, erase all the faulty affidavits and pleadings from your cloud or hard drive lest you repeat the same old errors by using incorrect forms.

Why is all this necessary? 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 …”

This is a subject I have posted about often, and probably will again as long as lawyers keep tripping over themselves. You can access those prior posts by entering “unknown heirs” in the search box.

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.

ADMINISTRATION OF AN INTESTATE ESTATE

August 18, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Statutory order of preference for appointment of Administrator.  § 91-7-63, MCA.

  • Surviving spouse.
  • Next of kin, if not otherwise disqualified.
  • Other third party, bank or trust company.
  • If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.
  • If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed.  § 91-7-79 and -83, MCA.

Oath and Bond.

  • At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.
  • At the same time the Administrator must also post a bond in the full value of the personal estate unless al heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir.  § 91-7-67, MCA.

Notice to Creditors.

Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:

  • Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.  
  • Administrator must file affidavit of known creditors and attest to having served actual notice on them. 
  • After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate.  The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.
  • Administrator must file proof of the newspaper publication with the court.
  • Publication may be waived by the court in small estates with a value not more than $500.

Inventory and Appraisal.

  • Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration.  § 91-7-145, MCA.

Determination of Heirs.

  • An action to determine heirs must be brought before the estate may be closed.
  • Publication process to the unknown heirs of the decedent must be made.
  • Determination of heirship requires 30 days’ process and should be to a day certain so tha the unknown heirs may be called.

Interim Hearings.

  • Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.
  • A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.
  • A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.

Petition to Close Estate and Discharge Administrator.

  • The attorney must file a cerificate that there are no probated claims, or that the probated claims have been satisfied.
  • Final account is filed with petition, unless excused by the court.
  • All parties in interest are summoned to a hearing on the final account and petition to close.  § 91-7-295, MCA.
  • If approved, the court enters judgment for final distribution of any property in the Administrator’s care.  § 91-7-297, MCA.
  • Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees.  § 91-7-299, MCA.  

SO EXACTLY WHO ARE THE HEIRS IN ADMINISTRATIONS?

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.

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